I welcome everyone to the 16th meeting in 2009 of the Health and Sport Committee. I remind members, witnesses and the public to switch off their mobile phones and other electronic equipment. We have received no apologies.
I am from the Association of Independent Tobacco Specialists.
I am chief executive of the Scottish Grocers Federation, which represents convenience stores in Scotland.
I am a solicitor and head of BII Scotland, the professional body for the licensed trade. We represent 800 individual members and 32 corporate members.
I am vice-president of corporate affairs at Japan Tobacco International.
I am campaign manager for the Tobacco Retailers Alliance, a coalition of 26,000 independent shops that sell tobacco products.
I am chair of the National Association of Cigarette Machine Operators.
I am managing director of Sinclair Collis, which has 15 employees in Scotland and operates throughout the United Kingdom.
I represent the Imported Tobacco Products Advisory Council. We focus on representing smaller tobacco retailers and the specialist trade.
I am director of the smokers' lobby group, FOREST, which stands for Freedom Organisation for the Right to Enjoy Smoking Tobacco. We represent smokers and liberal non-smokers.
Thank you for your written submissions on part 1 of the bill. In round-table discussions I usually let witnesses speak before I bring in members. Many of you take similar lines in your submissions, so I will allow members to intervene. If someone makes a point with which you agree, it will not be necessary to elaborate on it at length, although if you want to add something or voice dissent it would be useful to hear from you.
Our position on the proposals to restrict the display of tobacco products was encapsulated by John Key, the Prime Minister of New Zealand, when he said
I agree 100 per cent with John Drummond. We are overlooking more effective alternative measures, which are based on evidence and would reduce youth smoking. Such measures are not in the bill.
I agree. We have just had a change in the liquor licensing regime. Many of the premises that are targeted in the bill are also licensed for liquor. All licensees and staff will be trained to identify under-18s, and if they can do that for the purposes of selling alcohol they should be able to do so for the purposes of selling cigarettes. Training would assist people who are not currently in the liquor licensed trade.
In our submission, we advance arguments on the evidence. We commissioned two experts—an expert on consumer research and an economist—to measure the evidence that has been submitted to the committee against globally accepted quality standards. The evidence did not come up to those standards, and we urge the committee to consider the points that we make in our submission because the evidence is fundamentally flawed.
I will take the small business angle. My core members are tobacco importers—small private companies that employ, on average, fewer than 50 people and rely to a great extent on the secondary supply channel of retail outlets because they cannot compete for space on the gantries. Those smaller retailers, particularly the ones that carry a wide range of specialist tobacco products, will be disproportionately affected by a ban because they will be less able to compete with the major retailers.
My understanding is that specialist retailers will be excluded from the display ban, so I would have thought that, if the ban had any effect on small retail outlets, it would benefit them because they would be the one group that was allowed to continue to display products in their shops.
Specialist retailers are grateful for the exemption—my colleague Mike Davies can obviously speak better on that than I can—but there are only 10 of them in Scotland. My members are national distributors who, sadly, cannot survive on specialist tobacconists alone. About a year ago, we estimated for Westminster's Department of Health their loss of turnover from a total ban at 40 per cent. If specialist tobacconists United Kingdom-wide were exempted, that figure would still be 35 per cent. That, of course, follows the smoking ban, because of which a number of specialist tobacco product suppliers have lost between 20 and 30 per cent of their business.
From considering the evidence that we have received from the opponents of a ban on cigarette displays, it is not clear to me what the purpose is of the fairly elaborate displays for cigarettes in shops.
Tobacco is displayed in a shop just as any other product is. The display is there for the purpose of showing our customers what we have available and at what prices. It is behind the counter because it is a valuable, highly portable item. We cannot let children—or even adult customers—in the shop simply pick it up off the shelves; it has to be behind the counter so that the retailer can guard it.
If the purpose is to allow customers to see exactly what you have on sale, what difference would it make if you simply had a list of the tobacco products that you have on sale without having the products themselves on display?
A price list would not tell you what was available.
I did not say a price list; I said a list of cigarettes that you stock.
Would we change that every day or throughout the day if we ran out of stock?
You could just have a list of the 10 or 20 products that you stock. What would the difference be?
Tobacco represents around a third of turnover for newsagents and the average small shop. Therefore, anything that restricts their ability to sell it in the way that they currently do is a threat to the business model as a whole.
The displays of all those shiny packets of cigarettes, which seem to get ever bigger because there are so many different variants—at times, the displays just seem to grow and grow—lead me, as a non-smoker, to believe that we have so many variants and so many attractive-looking packets to catch people's eyes to demonstrate the products that the retailer has. Given the serious damage that cigarettes cause to people's health, which is indisputable, I cannot see what purpose the displays have other than direct marketing for the tobacco companies. If they dispute the purposes that I have listed, they should be quite happy for shops just to have an A4 sheet that lists the names of the tobacco products that they sell. The customer could just go in and say, "I'll have a packet of them, as you've got them."
Tobacco is a legal product.
I am aware of that.
It is difficult for a shop to sell something unless it can show its customers what is available. Retailers should be able to sell tobacco as they do at present, and as they sell any number of other items in their shops.
Most of my members are specialist tobacconists and they are grateful for getting an exemption under the Tobacco Advertising and Promotion Act 2002. However, we also have non-specialist members who sell a number of specialist products. Wyndham Carver talked about such retailers a moment ago. The bill will be catastrophic for them because a high percentage of their turnover comes from specialist products but they do not meet the 50 per cent rule. Under those circumstances, the Government should consider giving them an exemption so that they can continue to display cigars, pipes, pipe tobacco and snuff.
In his comments on displays, Mr Matheson asked why we do not just have a list. Modern retailing is about offering choice and displaying the products that are on offer, whether that is cigarettes, wine, other forms of alcohol, toilet rolls or whatever. Display is the norm and the way forward.
I want to elaborate on Mr Drummond's point. The displays are there to allow adult smokers to choose their brand and see what is available and to allow us, as a legitimate company, to compete in the marketplace. The measures in the bill are about children and smoking. They are not about adult smokers. Children should not be able to get hold of cigarettes. There are laws that state that a person must be 18 or over to purchase cigarettes. Those laws could be better enforced, and the alternative solutions that we propose in our submission would help to prevent children from getting hold of cigarettes, but I reiterate that the displays exist to show adult smokers what is available and to enable them to distinguish between the brands on the shelf.
Everyone around the table would agree that no one wants to see children smoking. We have been told that the bill aims to reduce youth smoking rates, yet as far as we can tell there is no evidence that the introduction of a display ban will have a serious impact on youth smoking rates.
Yes. We will have a general discussion at the end.
I will just finish off on the wider specialist trade issue. On 2 February, the minister and Mary Cuthbert from the bill team visited Mr Sinforiani of Sinforiani Bros, who made a submission to the committee and who is leading on the wider specialist issue. There have been subsequent discussions between Mary Cuthbert and Mr Sinforiani and they have another meeting on his proposals tomorrow.
That was our understanding from the evidence that we received from the bill team.
I want to return to the comment that Katherine Graham made that, although display bans are not proven to work, other measures that are proven to work are not in the bill. I am keen to hear what they are.
We have campaigned for some time for the criminalisation of proxy purchasing. Currently, the legal onus for enforcing the law rests entirely on retailers. The only law is that retailers cannot sell tobacco to under-18s, which means that it remains legal for adults to buy tobacco for under-18s. That sounds a bit shocking, but it is very commonplace. The evidence from trading standards is that an estimated 46 per cent of underage smokers regularly get their tobacco from a proxy purchaser. We are keen for that avenue of access to be closed off.
Obviously, my party does not want young people—or indeed anyone—to start smoking, but the evidence in the submission from the Scottish Grocers Federation is that, in Saskatchewan and Manitoba, where display bans came into effect in 2005, the reduction in smoking was not as great as that in other states in Canada that did not have a display ban. Is that the only evidence that we have? It does not support the banning of visual displays of cigarettes. Do any of the witnesses know of a better evidence base than that? The evidence that we have suggests that not banning visual displays leads to a greater reduction in smoking among young people aged 15 to 19.
It read like counsel's opinion. I will let Ms McKeown answer that.
Yes, we have serious concerns about the competence of the Scottish Parliament to legislate in the area. The three areas that we mention in our submission are the reserved powers of Westminster, European law and the European convention on human rights. We urge the committee to satisfy itself that it is happy with the view that the Scottish Parliament has competence in this area.
I remind members that the bill has received a certificate of competence from the Presiding Officer. That is another issue that members can raise with ministers if they want.
It is quite important to make a distinction. Ms McKeown is not challenging the Government; she is challenging the Presiding Officer, who has given a certificate of authorisation for the bill. It is nothing to do with the Government.
We are expressing our concerns—
You have focused your challenge on the Government. You are keen for us to do our homework, but you do not appear to have done yours. The bill has been introduced only because the Presiding Officer, having received it from the Government, has deemed it to be competent. What you are challenging is the Presiding Officer's ruling on the matter.
As I have said, we are raising serious questions and asking the committee to satisfy itself that the Scottish Parliament has competence in the area.
I do not know what the committee is going to do—I cannot speak for all members—but we usually let the matter rest when a certificate of competence has been received from the Presiding Officer. No doubt, the Government may want to comment on the matter in passing and, if the bill is passed, you can always pursue a legal challenge. I am sure that you have considered that. Let us move on.
I asked a question about the fact that, in the states in Canada where a ban on visual displays was not introduced, the reduction in smoking was greater than in the states where such a ban was introduced. That is not a good evidence base. Can anyone give me something else to justify the banning of visual displays of cigarettes?
I suspect that you are not going to get any volunteers from among our current witnesses—and I am right.
I have a supplementary question. Although that evidence is clear, it is not clear what the smoking rates were prior to the ban. It could be that visual displays were banned in one area but not in another because the smoking rate in the first area was much higher. Until we see the evidence—
Actually, I have a copy of that information in—
Sorry—I do not want people just to pitch in; I would like everyone to speak through the chair. People have been waiting to comment. I will bring in Ross Finnie and then Ms Hood, who has been waiting for a while.
This is an open session and Mary Scanlon cited the Canadian evidence by way of an example. The committee is asking for an evidence base for one side of the argument or the other. It is all very well to say, "Forget the Canadian example; there is no evidence," but is it the witnesses' position that there is no evidence and that the bill is proceeding without evidence? If so, that places a slightly different gloss on the whole matter. You have a particular interest in the bill and agree that there is no evidence one way or the other.
The problem is that so few territories or countries have introduced a display ban that there is simply insufficient evidence to justify it. Canada is one example; Iceland is another. The Prime Minister of New Zealand recently announced that there will not be a display ban there because the evidence does not justify it. You could argue that New Zealand is not dissimilar to Scotland in many ways, which suggests that the Scottish Government should reconsider the policy.
Our position is that there is no compelling evidence one way or the other. The Canadian statistics show that you can isolate certain elements to argue one way or the other. For example, in Saskatchewan, the proportion of smokers in the 15-plus category increased between 2005, when the ban was introduced, and 2007, whereas the all-Canada trend was one of no change where there was no ban. In Manitoba, which was the only other state to introduce the ban in 2005, although the number of smokers decreased, the proportion was still higher than the proportion in Canada overall. The message is mixed and there is no compelling evidence to support the ban.
Paragraph 15 of the policy memorandum states:
I have gone through the evidence base; I have read all the studies that are mentioned. A lot of studies that link youth smoking and advertising have questionable applicability to Scotland or the UK, because of the Tobacco Advertising and Promotion Act 2002. Most of them were done in countries or states with very different market conditions to those in the UK. The reason why there is no evidence is that the whole proposal is based on a flawed assumption that when young people see the display of tobacco in shops, that makes them want to smoke. The display of tobacco is not identified as a causal factor in the Government's own research into youth smoking; it simply does not come into play.
I agree. I am simply not aware of hard evidence that suggests that children go into shops, see tobacco displayed and want to buy it. I am a non-smoker. I grew up in Scotland. I went to school in St Andrews and university in Aberdeen. I was surrounded by tobacco advertising and sponsorship. I have seen tobacco in shops all my life and, like many millions of non-smokers, that has never encouraged me to take up smoking. It is incredibly patronising to tell people that they are influenced to buy tobacco simply because they see a packet on a shelf. When you go into a supermarket, you see rows and rows of soap powder, pet food and alcohol, but that does not mean that you want to put it all in your shopping trolley.
I agree whole-heartedly. The "Scottish Schools Adolescent Lifestyle and Substance Use Survey (SALSUS)—National Report 2006" points to evidence that boys and girls—underage smokers, if you like—acquire cigarettes and the habit of smoking through peer pressure and, in some cases, through parental and other family influences.
I will at last let in Ms Hood, who has been parked for a long time.
If the display unit is taken away, the subsequent vacuum will have to be filled with something. Shops, especially licensed premises, have already gone through the painful transition to the liquor licensing regime that, by the time all the bureaucracy, architect's fees and lawyer's fees have been covered, will have cost the owner of the smallest shop in the land £3,000 to enter. Taking away a display unit comes with a cost; filling the vacuum with something comes with a cost; going back to the licensing board comes with a cost; and the new plans that are required come with a cost. My friends in CJ Lang say that for a three-till shop the average cost will be between £13,000 and £15,000, which, on the back of the new liquor licensing regime, could be enough to cripple some players, particularly independents.
There were gasps when Ms Hood mentioned organised crime.
I am finding it difficult to work out why these displays exist. I understand the point that shops exhibit the products that they sell, but we have been told that neither the size of the display nor its presence influences the people, including adolescents, who purchase these products, and that, in any case, cigarette smokers go for the brands that they like. We have also been told that since the restrictions on cigarette advertising were introduced in 2003 brand variants have increased from 79 to 114. Indeed, variants in the Mayfair brand—which I think is one of Michelle McKeown's products—have increased from five in 1998 to 17.
I understand your reasons for asking the question. The Mayfair brand is actually one of the fastest growing in the United Kingdom and, although it is true that some smokers stick with a brand, others might say, "I'm going to move to another brand." The Mayfair brand has grown from King Size to Superkings and other variants to satisfy its position as the fastest growing brand in the market.
I do not completely follow that. Your argument is that Mayfair is so popular it is taking cigarette smokers away from other brands. I can see why, if there are very popular and less popular brands in your stable, you might decide to get rid of the less popular ones, but I do not see the reason for introducing what you might call internal competitors to a very popular brand. Surely if you were selling loads and loads of washing powder you would simply produce more of that washing powder instead of a load of different products to tempt people away from your original brand. It seems to me that you are simply fighting among yourselves.
I understand what you are saying, but the fact is that we are fighting against our competitors. As a legitimate business, we are trying to steal market share from our competition. We are not looking to increase smoking or the number of smokers. After all, smoking in the United Kingdom is declining by 3 or 4 per cent each year. As I say, we are a legitimate company competing in the marketplace, and we are simply trying to take market share and make our brands more acceptable to our smokers than our competitors' brands.
But if you have a very successful brand, why not leave it at that? Why have more variants?
I am going to move on, Dr McKee.
Like Ian McKee, I am finding it difficult to understand the real purpose—other than the marketing one—behind putting large cigarette displays in such a prominent position in shops. Some of you have stated that you do not believe that the policy objective of banning such displays will impact on the uptake of smoking by young people. What impact will it have on people who already smoke?
I do not think that adults will stop smoking just because they cannot see tobacco in a shop. However, the way in which the retailer will be impaired in selling the product might make smokers buy their tobacco from other places such as the supermarket where they do the weekly shop or, as Ms Hood mentioned, black market sources and the white van man.
I hear what you are saying, but I do not necessarily follow the logic of it. If the displays have no impact on those who smoke or on the number of smokers, what is your problem with getting rid of them?
Smaller shops are a one-man operation that rely on selling things quickly, efficiently and conveniently—
I understand that, but my question was about the problem with removing the displays if they have no impact on the uptake of smoking by young people and do not have an impact on those who already smoke anyway.
I think that it will impact on those who already smoke, because they will change their shopping habits. They will move away from smaller shops to other sources for their tobacco.
Why do you say that? What is your basis for those claims?
The retailers' ability to sell tobacco will be impaired—
But what is your evidence for that? You keep going on about the evidence for the provisions in the bill; you need to show me the evidence base that substantiates your suggestion that removing displays will make smokers change their purchasing patterns.
Absolutely. An econometric study that we commissioned on the effect of the display ban proposals on smaller shops showed that trade would be displaced from those shops into supermarkets.
So why is that not supported by the evidence from Canada?
Shops have closed in Canada.
No—the Canadian Government has made it quite clear that the ban has had no impact.
I have seen evidence that shops have closed in Canada. In fact, I brought over a Canadian colleague to meet MSPs, including members of the committee, so that they could hear from the horse's mouth how his members' shops were closing down. I am not sure how we have got into the situation where the evidence appears to contradict itself.
Why, then, in the Canadian Government's economic assessment of the states that have banned cigarette displays is there not one reported case of a shop closing as a result of the ban?
I am sorry but I cannot tell you why the Canadian Government said that. All I can offer to share with you is the evidence that I have seen, which is from studies commissioned by the Canadian Convenience Stores Association.
Ah—a vested interest.
Is it correct that in the areas in Canada in which the ban was implemented, the industry provided substantial funding to small traders to change their display process? The argument about the cost to small traders might not be incorrect, but the situation would at least be substantially ameliorated by the provision of funds by producers who desire to continue to have their products sold. Is that correct about Canada?
From a JTI perspective, no. No one should assume that we are going to pay for our products to go out of sight in the UK. Why would we do that? I want to make that clear. I have heard that—
Are you saying that you do not pay for any display changes at the moment? We are told that the display units change every three to five years, which is an adaptation problem that the committee will have to consider. Are you saying that at the moment, you provide no funds to any tobacco retail outlet for the display of your product?
No, that is not what I am saying. We did not pay to put our products out of sight in Canada, and you should not assume that we will pay to have our products put out of sight in Scotland. As it stands, we pay for the gantries, the installation and the maintenance costs with certain retailers.
Are you saying that you would definitely not provide any money to any retailer in Scotland in the event of a ban being introduced?
I have not seen the technical areas of the regulation, but I am at a loss to understand why the business would want to pay for its products to be out of sight.
I take it that that is a maybe.
Katherine Graham from the Tobacco Retailers Alliance said that there was no evidence, but her submission says that a display ban was introduced in Thailand and that
Thank you for reminding me of that. That was from an AC Nielsen report in 2007, which showed that a lot of smaller shops had closed down while larger shops—I think the report named 7-Elevens—had increased in numbers.
We will have a wind-up at the end in case anyone has a point that they have not made and that is not in the written evidence—remember that the committee has all the written evidence as well.
We as an industry do not, under any circumstances, want underage purchases of products from our machines. Trading standards officers have carried out frequent test purchases from those machines and now believe that underage purchases from vending machines can take place. NACMO does not believe that under-18s use cigarette vending machines, although we believe that it is possible for them to purchase from them. We propose that a form of restriction and age verification for those machines is considered for the bill.
BII Scotland, as the professional body for the licensed trade, supports responsible retailing. We would hate to see any of our members selling cigarettes or alcohol to persons under 18.
On the issue of the use of vending machines by under-18s, we have had evidence from the Society of Chief Officers of Trading Standards in Scotland that underage individuals purchasing cigarettes from vending machines "remains a problem". Additionally, we heard today from the Scottish Grocers Federation about the 2006 SALSUS report, which showed that the prevalence of smoking among underage individuals has been declining. The 2006 SALSUS report also demonstrated that 10 per cent of 15-year-olds obtain their cigarettes from vending machines. That in itself suggests that there is a serious problem with the misuse of vending machines and underage individuals being able to get products. I would like to hear what the witnesses have to say in response to that.
Specifically on that point, we would question much of the evidence—the so-called real evidence—about children who purchase from cigarette vending machines. All the evidence in the UK and in Scotland about that comes from surveys like the SALSUS one. It says that 10 per cent have reported that they buy from vending machines, but if you add up the figures the total comes to over 200 per cent. The survey gives children a kind of choice of where they might buy cigarettes, and they give a range of places that they buy from. We believe that there is no real evidence that that is normal practice; it is what they say they do. That kind of evidence is compounded by trial purchases, which are done by taking young children into public houses and asking them to access a vending machine. Again, we are disappointed that such access happens, which is why we, as well as NACMO, have been working long and hard to provide access controls. We have presented the controls to the UK and Scottish Governments and hope that they will accept that they are a reasonable recourse to take.
What does a packet of 20 cigarettes cost in a retail setting, and what do you charge for it?
The recommended retail price for a packet of 20 Marlboro Gold cigarettes is £5.85, and £3 for a pack of 10, which works out as 29p or 30p a cigarette. The average price for a pack of 20 cigarettes in one of our vending machines is £6.44—that is a silly price because it is an average.
Mr Banks is much more authoritative on this subject than I am, so I can only echo what he says.
I agree with what everybody has said. I cannot comment on the 2006 survey that Mr Matheson referred to or on the numbers of young people who were getting access to cigarettes at the time, but I can state that, at that time, few of the staff in licensed premises or the licensees themselves had had relevant training. Since then, the Scottish Government has made it compulsory for all licensees and staff to be trained in the sale not only of alcohol but of age-restricted products. BII Scotland covers those areas completely when training is given for our qualifications.
We believe that the case that has been put to MSPs has not been particularly fair with regard to the use of surveys. The Scottish schools adolescent lifestyle and substance use survey indicates a decline in the number of underage smokers from 22 per cent in 2000 to 10 per cent in 2006, with further declines since then.
That attack on SALSUS is unacceptable. The survey has been conducted by successive Governments since the 1980s, and the questions have been put through rigorous testing. The researchers would not include non-smokers in the analysis of where people purchase. I am sorry but, if the evidence is to be attacked, let us have valid attacks. It destroys your own case when you make such an attack.
SALSUS is a multiple-choice survey.
Absolutely, but there is an initial question about whether the person smokes, and only the responses from those who say that they do smoke are analysed when the figures are produced on how many people purchase cigarettes from various places. The survey does not include everyone, regardless of whether they smoke, in analysing where people purchase cigarettes. The survey has been validated and subjected to rigorous scrutiny over the years. It is a highly acceptable survey.
I have two questions. I will not comment on the validity of the statistics, but the Manchester Evening News reported last month that in the north-west of England there had been a region-wide crackdown on purchases from vending machines by underage people. Some 120 pubs were visited and cigarettes were obtained by underage volunteers in 75 of those outlets, so it seems that there is a problem to be solved. I appreciate that some people say that that is a form of entrapment but, on the other hand, if young people want to buy cigarettes from machines, they will find a way in which to distract the person behind the bar and ensure that they do not take an interest. Do you accept that that is a problem? If so, why have you not done something about it before? If there is a range of mechanisms to prevent it, why do you have to wait for legislation?
To answer Mr McKee's question about trading standards in the Manchester area, in the past 12 months, trading standards departments throughout the United Kingdom have stepped up the number of test purchases that they make in environments where there are vending machines. We are aware of that and we understand it. However, in the past 20 years, no NACMO member has been prosecuted for or convicted of the offence of selling tobacco to an underage person.
Why are you not doing that?
We are looking to do it. Information packs are being sent to all of our customers.
Can you confirm that charges are not outstanding against the chairman of your northern branch, Mr Rod Bullough, and that he is not being investigated for selling tobacco products to underage people?
I will not comment on on-going cases, which would be prejudiced by my doing so.
We must be cautious about getting into such matters, in case they are sub judice; we had better not tread there. However, in your response to Ian McKee's question, you made an interesting point about access to machines. A question was also directed at Ms Hood.
I am terribly sorry that I was not clear enough. If people are in a pub, are having a pint and want to buy a packet of cigarettes, but no cigarettes are available on the premises, they will leave. If they are in the city, they will probably go to the supermarket, buy the packet of cigs and half a dozen cans of beer and go home. Footfall will be lost. There are also distress purchases. If someone happens to want a packet of cigarettes and the pub is the only place where they can get it, because the village shop is shut, they will tend to go in. Because they know the person behind the bar, they will say, "Hello Jimmy, I am just getting some fags," and will have a pint. That is how the licensed trade works—there is a synergy between the two purchases.
You have criticised the Government for failing to provide tested evidence, but you have just given us anecdotal evidence. Tread carefully with such evidence when you are rebuking us.
Are you telling us that people will not go to a public place where they know that they cannot smoke, because that is illegal, unless they can buy cigarettes there? I do not follow the logic of that argument one jot—apart from the fact that the evidence that you have given is totally anecdotal.
It is. I have made no criticism, on behalf of BII, of the Government evidence; I have no ability to do so, as BII has no research team in Scotland.
I apologise. The general tone was that the Government's evidence is anecdotal.
The evidence that I have comes from speaking to people in the licensed trade whom I represent. I am an ex-smoker. I would have gone into a pub to buy a packet of cigarettes if the shop had been shut, and I would undoubtedly have had half a pint while I was there—as a matter of courtesy, apart from anything else. That is an accepted norm in licensed businesses. I cannot produce evidence of it, but it has been observed by people working in the licensed trade for a long time.
My question is along the same lines. I can understand people who are involved with vending machines being concerned about the ban; I cannot quite follow why people who are involved in the licensed trade should be. If they did not have a vending machine, would they not be able to sell cigarettes from behind the counter, as long as the cigarettes were not on display? I cannot see how the proposal affects their businesses.
Cigarette vending machines were introduced to prevent theft. The theft of one packet of cigarettes from behind the bar knocks out the profit from two cartons and makes it almost impossible to sell cigarettes in that way. Nowadays, there is not enough room behind bars for cigarettes to be put under the counter.
Mr Banks, you seem to agree about the importance of vending machines in preventing thefts.
Yes, I was going to make that point. When the machines were introduced, licensees were losing a considerable amount of stock on staff changeovers and when other things were happening behind the bar, and they welcomed vending machines in pubs to control that loss. They recognised that that was a clever way of controlling their losses while still providing a service that encouraged people to come into public houses.
As an industry, we want to ensure that our tobacco is on sale in licensed premises. Vending machines are generally a secure and safe way of doing that. Putting our tobacco behind the bar makes it accessible to children and to landlords' sons and daughters. Having it in a secure machine that money has to be put into in order to get the product out prevents that.
I do not want us to get into tit for tat about who called whom about what and when. I know that a general call for evidence would have been sent out, which you perhaps missed. A call for evidence is sent out for every bill—even for members' bills—and the consultation is open for a period of time.
It is 12 weeks, is it not?
I am advised that it is usually 12 weeks. A general call for evidence is sent out for every bill that is proposed by the Government. You perhaps missed it, but many other organisations are alert to bills coming along and keep their eye open for issues that may affect their business.
I am still wondering about the evidence base. It is worth saying that the Society of Chief Officers of Trading Standards in Scotland confirms, in its evidence, that it
We have produced our radio frequency system and have included parameters to ensure that, when it is rolled out, that can be done efficiently and quickly. The system should be compatible with existing machines. Trials are being carried out in a number of pubs in the Manchester area, and the results that are coming back are highly favourable, on a number of points. First, everybody has to come for age verification. Secondly, the system has been embraced by the staff working in that environment. We are very much aware that, unless the system is embraced by the staff, it will fail. As I say, the results that we have got back from the initial trials have been very positive.
Are many trials being conducted in Scotland?
Not currently. Because the trials are at an early stage, we have kept them local to the people who have designed the software and hardware for us.
Earlier, the competence of the SALSUS report was questioned. We have heard evidence today from one party that has used that report, which questions the need to ban the display of tobacco products in shops. Another party questions the quality of the report for the purposes of defending the retention of vending machines. I do not think that you are doing your case much good if you cite evidence when it works in your favour but then question it when it does not.
Ms Hood can respond first, as her point was specifically taken up. The radio-controlled vending machine issue will go to Mr Mair. Mr Drummond wishes to come in, too.
On the comments that Mr Matheson has just made.
Is it on the economic issues or on the point about radio-controlled vending machines?
No, it is on the question of the SALSUS report.
Okay. I invite responses in the order that I have just set out.
I said at the start that cigarette machines have very little impact on the bottom line for pubs. I agree with Mr Matheson on that, and I agree with my friend Paul Waterson on that. However, I also said that not having the machines can have a serious effect on marginal premises. City pubs probably make more money from vending machines, as they have more people going into them. However, the service level there is probably less important.
Mr Matheson speaks about the pubs that he goes into, which have no vending machines and seem to do very well. We would never deny that some pubs are more food led. Profiles are different—some pubs do not have vending machines and will perhaps not suffer.
What is the flaw in the token control system?
The flaw is that, in some outlets, the token can become available to a minor. We have considered the issue in other countries such as Spain, where tokens can be seen sitting on top of the machines. That is not responsible, and it is not what we want to be involved in.
Mr Matheson's comments regarding our use of the information from the SALSUS report suggest some kind of conspiracy or linkage between witnesses round the table.
I am not into conspiracies.
Okay. All I wanted to say is that there are different markets. The cigarette vending market is quite different from the retail market. I have no problem whatever with the SALSUS report. There are perhaps elements of it that we do not like, but we nevertheless accept the numbers and the trends therein. That is why the example was used.
Helen Eadie has not spoken yet. Good morning. It is nice to see you.
Thank you. I have three questions—I have saved them all up for you, convener.
I am sorry, but I will not. I think that it would be an extreme action to ban tobacco vending machines. We all accept that tobacco vending machines form a very small part of the tobacco market. I will openly say that, for many smokers, vending machines are not desperately popular, because of the expense of buying cigarettes from them. However, the point is that they are convenient. For someone who is in a pub late at night, when the local shop has shut, the vending machine offers a very convenient way of buying cigarettes.
So the answer is no.
He is not going to resile.
On that last point, although I would not use the word "entrapment", trading standards officers encourage children to buy cigarettes from vending machines—they give a child £7 in coins to do that, because it is more than £6 for a packet. That is not a normal habit. Nobody stands beside a child saying, "Here's the £7 you need to use that machine." That is a false picture. We hear considerable concerns from publicans about the way in which trading standards do that. That might well be the subject of legal action.
We will hear evidence from trading standards witnesses in the next panel. No doubt they are listening now. We can put those points to them and you may stay while they give their evidence, to hear any rebuttals.
I will not be able to talk from the public gallery.
No—you get only one slice here. This is your moment in the sun.
If someone who is under 18 goes with a trading standards officer, they can get to a machine and purchase tobacco. I do not want to repeat myself, but our industry is saying clearly that vending machines are not a route that people who are under 18 use to purchase cigarettes. We have been through that already. The reasons are the expense of the product and the fact that a minor would have to walk into what is often a hostile environment. The huge issue regarding tobacco is to do with the people who sell illegally imported, counterfeit and contraband products on street corners. That is how children buy the product and where the issues really arise. They do not buy tobacco from our machines. However, we want to work with the Parliament to consider ways and means of restricting that as much as possible.
Vending machines in Japan were modified so that they had age verification measures, but underage smokers borrowed proof-of-age cards from friends and family. In Florida, where proof of age is required through an identity card, a test-case compliance study showed that one third of attempts by minors to access cigarettes from vending machines were successful. That is in a report from Broward County in Florida—I have the reference if you need it. Those examples show that there are ways round any age verification measures that are put in place, whether that is through borrowing tokens or ID or through proxy purchasing, which we heard about earlier. The one point that has interested me was the suggestion that we should make proxy purchasing illegal or a criminal offence. However, I want to press you again on the point that there is simply no way round the age verification issue.
Vending accounts for less than 0.8 per cent of total tobacco sales. The age verification system that we propose uses radio frequency control machines. That is dissimilar in many ways to the system in Japan, where a card is used to take the machine from a dormant to a live state. The system that we use is based not only on a card, but on age verification by members of staff behind the bar who are qualified to verify age. If a 14-year-old went to a member of staff behind a bar to ask for a machine to be put into sale mode, the member of staff would see them. Young people cannot go into an outlet and produce a false ID card if it is obvious that it is false. Age verification is done by sight and by some form of identification.
To sum up the evidence so far, you are telling us that young people do not purchase cigarettes from vending machines anyway and that test purchasing is an unfair approach. Those are the two points that I have taken from your evidence so far, neither of which I accept. As I understand it, the radio-controlled system will require a line of sight by the member of staff. Is that correct?
Yes.
Yes.
Are you really telling the committee that in a busy pub, a member of staff will watch somebody move from the bar across to a vending machine and then ensure that that person makes the purchase? Many machines might begin in sight, but a lot of them end up out of sight. How will staff ensure that a machine is switched off as soon as a purchase is made, or can only a single purchase be made at a time? In that case, someone who wants to purchase a couple of packets will have to go back to the bar to get it operated again.
The NACMO siting guidelines for machines are fairly explicit. We would like to ensure that every single machine in a pub can be seen easily from the bar. We are not talking about having machines down corridors or in alcoves; we are talking about having them within sight from the bar.
I have difficulty getting a drink in many of the bars that I go to, but you are trying to tell me that, in a busy bar, someone will stand there and ensure that the system operates correctly. I find that interesting. I do not know how many pilots you are operating, but if there were a sufficient number of sites to allow test purchasing to take place, it would be interesting to find out the results.
With regard to RF systems, we have employed the services of a company that was recommended to us by the Department of Health at Westminster to carry out test purchases at sites where we have the system to ensure that it works and to find out what is happening.
When will you have that evidence for us?
I would have to speak to a colleague about that.
Time marches on and we will march on to different stages of the bill.
We are talking about a matter of weeks.
It would be useful if you could let me and the clerks know the timetable, so that we can consider that evidence.
We have spoken to Mary Cuthbert about that and she is waiting for the results from us, too.
Sinclair Collis is carrying out separate trials with a similar product. We offered to bring a machine to the committee. At that point, I did not know that it was a round-table discussion—I thought that the format was different. We took a machine to our depot in Scotland and suggested that we could site it in a pub close to the Parliament—perhaps one of Dr Simpson's pubs.
We are interested in machines that are operating in real conditions, particularly in busy bars. I can think of some small rural pubs where it would be difficult to put a cigarette vending machine within sight of the bar.
We do not put them in if that is the case. We work hard with trading standards officers. We are not against them—we work with them on siting. They ring us up if they think that a machine is not in the best position and we move it immediately.
We have a last question, from Ian McKee.
I wanted to ask this as the first question. I feel that the committee should know who we are taking evidence from, although that is pretty obvious from some of the details that we have been given. For example, we know that Sinclair Collis is a totally owned subsidiary of Imperial Tobacco Group. Is that correct?
That is correct.
I am not criticising—it is just nice to know.
I am happy to tell you that we get donations from JTI, British American Tobacco and Imperial. We are in our 30th year, and without those donations it would be very difficult for us to exist and to be here to put our case in a democratic forum.
How much do you get?
It is approximately £250,000 a year.
NACMO is funded by its members. We have 55 members, ranging from large cigarette vending companies—all independently owned—to individuals with perhaps only 20 or 30 sites, and we take an annual subscription from them.
What proportion of your income comes from the tobacco manufacturing side?
I do not think that that is relevant to the conversation.
Oh, I think that it is relevant. It is a straightforward question—we have already had an answer from FOREST.
I cannot answer that question today, but I can get the information for you, convener, if you think it is important.
We would appreciate the information, and it will be published as part of our evidence session.
My campaign is funded—and has been since it was founded 26 years ago—entirely by the Tobacco Manufacturers Association, which means that we can offer free membership to independent retailers of tobacco products. We have traditionally campaigned against the black market, which is obviously an issue that is relevant to the manufacturers of tobacco and to the retailers that sell it.
What is your income from the industry?
Gosh, I should probably—
I can tell you what JTI's contributions are, if that would be helpful.
That would be helpful, but Katherine Graham will need to write to the committee.
We would like to know the total figure. I have already asked Mr Mair to provide the figure for his organisation in additional written evidence.
I would like to check with our members—the people who fund the alliance—as a courtesy, but I will let you know.
Of course; you can check, and then write to the committee with the figure. I understand that you have undertaken to provide that.
We are proud to support the retailers and the organisation that represents smokers. We are transparent about that—they do good work and they need support to put forward presentation materials and surveys when they are expressing their concerns to Governments about the impact on them of any proposed measures.
I do not have the exact figures with me today, but we are talking about small amounts. It is about £5,000 from each of the tobacco manufacturers; the amount that the independents contribute depends on the size of the company. The more sites they have, the larger the amount they pay for membership.
I see that John Drummond wants to come in—I will let him make a comment, if it is on funding.
It is 30 seconds' worth of comment, for the record.
Let us hear it then.
The Scottish Grocers Federation is funded by retail members, and it has the interests of retailing at heart, as opposed to receiving any supplier contributions.
There is an organisation called the NFRN—the National Federation of Retail Newsagents—that has a Scottish branch. The committee presumably had the opportunity to call the federation here today, but it did not. The NFRN is funded entirely by its members, rather than by the tobacco industry in any way. It could have been a voice for independent retailers, without any link to the industry, at today's meeting.
We will not be chastised about who we call before the committee, if you do not mind. We have all the written evidence and it is for the committee to decide which witnesses to call—we have called a very representative sample here today.
I note that the policy memorandum says that
I am not convinced that the scheme will make any difference to how tobacco is sold because there is no evidence to show that it will.
It will be done online.
I think that it will be done online, but we will get clarification from the minister. Much of the process will be dealt with in regulations that will come before the committee before we reach stage 2. We will have draft regulations before we reach the first amendment stage.
May I respond to Ms Scanlon's other point? I did watch the broadcast of the previous committee meeting. There are some legal anomalies in the bill that could lead to difficulties if persons have the misfortune to be struck off in any area. The bill is not as clear as it might be as to whether being struck off would affect numbers of premises in an area or just one premises.
We asked that question and the answer was that the offending premises would be struck off according to the rule of three strikes and you are out. That is in the bill at present.
I say with respect that, unfortunately, there is a technical anomaly in the bill that could lead people to come to an alternative position. I wonder whether that could be addressed by the civil service.
We have asked about that too. As you know, stage 1 consideration of a bill is important because we look at where there might be errors, omissions, double entendres or whatnot so that we can get them remedied at stage 2.
Registration is preferable to licensing, which was also considered, because it is cheaper, easier and more efficient—in theory. Licensing would lead to unnecessary bureaucracy and cost, so we support registration.
We will talk about stronger powers in the next batch of questions on enforcement and fixed penalties—
It does link in with—
You can speak about stronger powers later. I want us to stay within the current category of questions, but please raise that point when we get to enforcement.
I want to hear people's views about the proposal from some of the respondents to our call for evidence that there should be a local register instead of a national scheme. Some people, for example the Trading Standards Institute, say that that might cut down on unintended bureaucracy.
The only issue with that is that you might get regional disparities, which might distort competition. Where small businesses are concerned, anything that reduces red tape and bureaucracy is a positive thing. On moral grounds, we cannot oppose any measure that would help to enforce the current law, which is that retailers should not sell cigarettes to under-18s. Shops have no business selling tobacco to under-18s, and we would support any measure that prevented such sales. Like Mr Drummond, I question whether a registration scheme would help enforcement against the black market.
I did not follow the argument about regional disparities.
If schemes were being administered by local authorities, the standards of enforcement might not necessarily be the same.
I think that there will be a standard form—it is being kept quite simple. We will come to that later.
It would be useful if the certificate were displayed in shops, pubs and legitimate vans. It is highly unlikely that the illegitimate white vans that circulate in Scotland, selling everything from carpets to goodness knows what, would apply for registration. If there were no other outlet in an area, I do not think that anyone would care. If an area does not have a village shop, no one is going to phone the local authority, trading standards or the police to complain. People will say, "Well, it's here. We'll buy stuff from it." The proposal does not address the harm that is caused by organised criminals, who are circulating in this country, selling illegal goods of all sorts, including cigarettes.
My comments are similar to those of Ms Hood. The display of a certificate of registration would act as a stamp of authority but it would not do anything to address illicit trade.
I want to move on to enforcement and fixed penalties. Mr Drummond, you said that trading standards officers need more powers.
Absolutely. We have very good relations with trading standards officers. Where they are good, they are very, very good, but where they are bad—you know the rest of that sentence. There is an inconsistent approach in trading standards throughout the country. I gather that that is to do with resource. Steps should be taken to offer a consistent trading standards service throughout the country. As responsible retailers, we believe that greater steps should be taken—either directly with trading standards officers or in conjunction with the police—to stamp out underage sales and, in particular, the illicit trade.
That picks up on Mr Drummond's point about inconsistency. I have some concerns about how trading standards officers in different local authorities might choose to apply, for example, the fixed-penalty notice and the direct referral for prosecution. There is a danger that one local authority could take a more robust approach than its neighbour. Do the witnesses think that there is a need for some form of guidance to accompany that element of the bill, to try to ensure a more consistent approach by local authorities to issuing fixed-penalty notices, and to when referral for prosecution is triggered?
I applaud your comments, and I agree with them. I am not sure how such a consistent approach can be established other than by an equitable allocation of resource among local authorities. In the next witness session, there is input from trading standards officers, and perhaps they may have some suggestions. However it is done, we would look for consistency.
I do not think that it is necessarily an issue of resource in local authority trading standards departments. It is about ensuring that trading standards departments are all using whatever resources they have in a similar way and achieving consistency in determining when a fixed-penalty notice is appropriate and when they should go for a prosecution. I understand what you are saying about resources, but I think that the issue is more to do with the application of the law and when trading standards departments decide to take a particular course of action.
Perhaps the way forward would be to have some dialogue between interested stakeholders, trading standards and the police to produce guidelines.
I agree that consistency across the board would be welcomed in all licensed trade premises. We have certainly not seen consistency as a result of the Licensing (Scotland) Act 2005. If guidance can be produced that ensures that there is a level playing field, every licensee, whether on or off trade, would welcome it. The difficulty is that, as the Scottish Government acknowledges, different conditions apply in different areas, which is why we have a total inconsistency in liquor licensing throughout the country. We have to ensure that we do not have a total inconsistency in cigarette registration, too.
We had evidence from the Association of Chief Police Officers in Scotland that it would wish to be involved. Should any registration process fall within the ambit of the police, rather than of trading standards? Are there any advantages or disadvantages to that approach?
I have long argued that trading standards should be monitoring licensing, which would free up the police for other duties. The witnesses could comment on either approach. The monitoring could be amalgamated to ensure that the law is obtempered.
We do not have strong views on that, but we believe that there is much to be gained by trading standards and the police working more closely together. I believe that in many instances they know who the culprits are and who the rogue retailers are. I am sure that between them they could work out the best way to tackle those issues.
You are nodding, Ms Hood, so I take it that you agree.
The police are working successfully with licensing standards officers at the moment. There is absolutely no reason why they could not work in the same way with trading standards officers. In certain areas, there is no overlap, but there is a sort of Venn diagram overlap in relation to how more serious issues are dealt with. The police get involved on such occasions, so that trading standards officers are not put at risk if they have to deal with a serious criminal type.
That is a very good point.
The issue of illicit trading has been raised many times. I guess that that is where there would be a benefit in ACPOS being involved, as per the representations that we had from it in writing last week.
You are on the ball this morning, Helen. You are firing good questions today. On you go; we are all thinking, "Good point."
Thank you, convener. What do the witnesses think about fixed-penalty notices being recorded on a publicly available register?
Just like the penalty points on your driving licence, which, of course, none of us has.
As responsible retailers, we have no issue with that suggestion; it sounds eminently sensible.
On that harmonious and happy note, I will bring this evidence session to an end. I thank you all for your evidence. I will suspend the meeting for five minutes.
Meeting suspended.
On resuming—
Our second group of witnesses represent trading standards officers. I noticed that they had their pens out and were taking notes during the previous evidence. On the panel we have Alastair Brown, the head of environmental health and trading standards in Glasgow City Council; David Roderick, the chairman of the Society of Chief Officers of Trading Standards in Scotland; and David Thomson, the trading standards manager in South Ayrshire Council.
The submission from the BII suggests that enforcement officers should be able to enter premises only at reasonable times, and should be able to require the production only of books, documents, data, records and products relating to the sale of tobacco. Could you compare that with the situation with regard to other regulated products with which you deal?
Most of our powers apply to premises during their usual hours of business. It is very rare that we would want access to a business when it was closed. I presume that the comment that you refer to concerns public houses: we would normally only go into a public house when it was open.
It is reasonable to say that enforcement officers might be in premises for a variety of reasons and that the procedure that has just been described is familiar to any enforcement officer. I would not want officers to be restricted to one function. When they are in premises they could, in theory, be multifunctional.
Last week, ACPOS wrote to us to suggest that the police might have a role in enforcement, which is interesting because it is rare for police officers to volunteer their services and support. Do you see a role for the police in that regard? I gather that they are not involved in other areas.
We work with the police on a variety of issues. There are good examples of partnership working with the police in other fixed-penalty regimes—certainly in Glasgow—and I do not see why this area should be any different. There is no reason why trading standards officers and police cannot both be involved in the enforcement regime.
Trading standards officers already work with police on what are, essentially, regarded as police matters, such as the sale of knives to under-18s and the sale of imitation firearms. The police recognise that trading standards officers have the expertise in underage sales and are familiar with the sorts of premises that sell such items, while they have the expertise in the products themselves.
On the sale of alcohol, the relationship between the police and trading standards officers is the other way around—the police come first and trading standards officers come in behind.
I understand that the police are concerned that the bill gives them no powers to enforce the legislation properly. They should be able to issue fixed penalties to non-registered or illicit sellers that they come across in their everyday duties. The thrust of the work that trading standards officers do with businesses has enabled them to build up expertise in underage sales and so on.
In Glasgow, environmental health officers and trading standards officers work together in one department. Licensing standards officers, who were mentioned by the previous panel, are contained within that partnership. One of the key roles for environmental health departments and the trading standards departments is business regulation. That fits in with the idea that we are about getting businesses to comply with legislation and advising and supporting them so that they can do so. To take one part of business regulation away from the role of those departments seems to be a bit strange.
We make a distinction around products that can have damaging effects on people's health. We are elevating tobacco to a far more serious level than alcohol; we are saying that even seeing it in a shop might cause someone to buy it impulsively, and that we therefore want it to be completely out of sight. Alcohol regulations are, however, enforced by the police and tobacco regulations will not be.
A parallel example would be enforcement of anti-smoking legislation in public places, which is undertaken by environmental health officers.
The submission from ACPOS came in late, so we have not arranged to hear from its representatives. However, if the committee would like to speak to ACPOS, we have time to arrange that for a later meeting. I feel that that would be quite useful, so perhaps we should think about it.
Some people in the tobacco industry have suggested that a ban on the display of cigarettes could have the unintended consequence of increasing the illicit trade in tobacco. The logic seems to be that having the products on the gantries allows people to see that the goods are kosher, which might not be the case when the product is kept under the counter.
I do not follow the logic of that argument, because the sole driver for buying illicitly—which currently happens at car boot sales, pubs, Sunday markets and so on—is cost. The argument seems to be that, once the products are out of sight, people who have been buying cigarettes from a convenience store for years will not know that it sells them anymore and will therefore seek out someone who is selling cigarettes illicitly, or that someone who cannot buy cigarettes from a vending machine in a pub will go out and find some illicit tobacco. However, people do not change their habit of buying legitimate goods simply because a product has been removed from sight. They will still source tobacco from the same places and ask the proprietors whether they sell tobacco. If one shop does not sell tobacco, they will go to another. I cannot follow the link between the products being removed from sight and illicit sales.
The BII suggest that removing vending machines from pubs in small rural communities that do not have shops would play into the hands of organised crime—I think that is the phrase that was used—and that the white van man would take over the sale of cigarettes. Is that a legitimate concern? Can you see it becoming a sizeable problem as a result of a ban on vending machines in pubs in rural areas, where there is no shop that sells cigarettes?
I am not sure that there would be a direct link between the ban on vending machines and illicit sales. We are conscious that the legitimate trade has genuine concerns about illicit sales. As part of the enhanced enforcement programme, we agreed that there should be a Scottish trading standards scambuster team, funded by central Government, run by North Lanarkshire Council and Dundee City Council and operating Scotland-wide. Part of the group's remit is to assist HM Revenue and Customs to deal with the illicit trade. Often such sales are, to some extent, out of the reach of local trading standards officers, because of the nature of the activities concerned: because they are often part of organised crime, they need the sort of detailed attention that only something like a scambuster team, working in co-operation with the police and HMRC, can give.
Is "scam" an acronym in this context, or is it just the slang term?
The project, which is funded by the Department for Business, Enterprise and Regulatory Reform, is called scambusters.
Is "scam" an acronym in this case?
No.
We should be happy, because we all know what a scam is. Eyebrows were raised when the term was used.
Will any of the measures that may be introduced under the bill play into the hands of organised crime and illicit trade?
The bill should help us to crack down on illicit trade—we will probably come on to that later. The bill gives police and trading standards a direct power to deal, through a fixed penalty or a report to the procurator fiscal, with people who are not registered to sell tobacco, which should increase our ability to crack down on illicit sales.
Would displaying of a certificate confirming registration to sell tobacco products resolve the issue? A Government campaign on the new legislation would let people know that they could still purchase cigarettes in such premises, even though cigarettes were no longer displayed.
When we originally considered the provisions for display of a certificate, we were ambivalent about the proposal. There are many pieces of legislation that tell people to display things—members of the public do not look up to see whether someone has a credit licence on the wall before taking out credit with them. The online register will enable enforcement agencies to check whether people are registered. I am not sure that the absence of a certificate will lead people to ask trading standards whether someone is registered. The purpose of the certificate may be to indicate in a roundabout way that tobacco is available on the premises. I think that people are likely just to ask for their usual.
The situation would be different if it were mandatory to display a certificate and an offence not to do so. That would let people know exactly where they stood.
It comes down to the number of times that we go in and ask for—
I am talking about ordinary people, who will go in whether or not they have seen the product. If someone is displaying a certificate that indicates that they are authorised by the Scottish Government to sell cigarettes, and people know that it is mandatory to display such a certificate, they will know that they are in a place where they can still get cigarettes.
People must display a weights and measures notice in their premises. The number of complaints that we get about people not displaying such notices is probably zero.
Okay. I might be flogging a dead horse with this one, but I will keep going anyway.
The Society of Chief Officers of Trading Standards in Scotland says in evidence that in its experience
Proxy purchasing is not the same for cigarettes as it is for alcohol—it is not an offence to buy cigarettes and then to give them to someone who is underage. If that is done with alcohol, the person commits an offence, as does an underage purchaser of alcohol. Equivalent provisions for tobacco purchasing do not exist; it is not an offence for an underage person to buy tobacco or for someone to buy it on their behalf, so we cannot take proceedings in such situations.
So, if you were standing in a shop watching as I bought cigarettes and handed them to a 10-year-old, that would be okay, would it?
Legally, yes; morally, no.
It is also quite all right to do that in front of the police. What about prosecutions of shop owners who sell tobacco to under-18s, which is illegal? I understand that there have been very few such prosecutions. Why is the number so low?
To some extent, it depends on the level of activity by local authorities. Until last year, when the enhanced enforcement programme began and additional resources came from the Scottish Government, only a small number of authorities were actively involved in test purchasing. Other authorities were simply going round advising businesses on the requirements and were positively not doing test purchasing. Test purchasing is the only way to get sufficient evidence to report to the fiscal.
Has lack of resources led to the low number of prosecutions?
The low number of prosecutions is, to a certain extent, because of lack of resources. As I said, until additional funding came through last year, many authorities were not doing test purchasing. Equally, the low number is to do with the effect of test purchasing. In my authority area, we have agreed with the fiscal's office that if we get a sale, the seller gets a written warning on the first occasion and is reported to the fiscal only after a second sale. We have reported probably only a handful of businesses to the fiscal because after the first offence, people often tighten up their practice. That is probably replicated in other authority areas.
The point of the bill is to reduce—or to eradicate, which would be wonderful—smoking among people under 15. However, we see 48 per cent of girls—half of girls—benefiting from proxy purchasing and buying tobacco while they are underage. There is nothing in the bill to stop that.
That is a fair point. Many committee members feel that the problem of proxy purchasing has been missed from the bill. It would be possible to amend section 4—"Sale of tobacco products to persons under 18"—to reflect our concerns. Criminal offences are covered in that section, which talks about summary convictions and fines not exceeding level 4. The committee might want to raise that matter with the Government.
The existing measures are not being enforced. My final point is that SCOTSS says that it supports a ban on vending machines, but you also say that there is
Perhaps your question is the result of how we worded our evidence. We are saying that we have no conclusive evidence in Scotland of the use of vending machines by under-18s, which is probably because we have not done test-purchasing work on vending machines. Our colleagues in the rest of the UK have been doing test purchasing since the early 1990s and have much more experience and have done much more work in that field. They more recently got round to concentrating on vending machines, which is why the issues that the committee heard about in the earlier evidence have cropped up. However, vending machines have not been a particular issue in Scotland and we have not undertaken a great deal of activity on them. We therefore do not have evidence on underage purchasing from vending machines, which is not to say that it is not happening.
So, there is no evidential base that confirms that there is widespread purchasing of cigarettes from vending machines by people aged under 18.
There is no such evidence in Scotland, but there is in the rest of the UK. The work of trading standards officers in England, particularly the north-west of England, leads us to believe that the situation is not greatly different in Scotland.
Test purchasing was not brought in to Scotland until 2005, when it was piloted in Fife. I was the Deputy Minister for Justice in 2001 who tried to bring in test purchasing, but the Lord Advocate had to consult on it and so on. I therefore point out to Mary Scanlon that we have not been doing test purchasing for long, whereas they have been doing it in England.
I hate to correct a committee member, but the test purchasing pilot was carried out by South Ayrshire Council in 2002. Fife Constabulary did test purchasing for alcohol, but for tobacco, the original—
I was not in Parliament when the pilot was finally implemented.
Ah!
There were four pilot authorities. Forgive me for correcting you on that point.
That is no problem.
Anything that helps to crack down on illicit sales is good, but trying to differentiate between mobile vans and car-boot sales would be a problem. The latter, along with weekend and mid-week markets, tend not to have legitimate sellers of tobacco. Sales of tobacco at such events tend to be illicit, even when they are from fixed premises, such as a booth or cabin. The people who turn up to sell at such markets will not be bothered about whether they can or cannot get registration: they simply will not register. We must ensure that we have the tools to do the job of detecting and reporting such people. We will come on later to whether the offence provisions in the bill cover that. We think that there are deficiencies in the wording regarding what is a tobacco business, which will not help us with illicit sales.
Should we restrict mobile vans to areas that do not have other outlets? My greater concern is with getting rid of tobacco altogether, but in terms of fairness, people in rural areas must have continued access to that addictive product for as long as it is legal.
That introduces a layer of complexity. If a business suddenly opened up in such an area, would it put the mobile van out of business? I can understand the objective, but from an operational point of view, we would be happy to have clear registration and non-registration.
Perhaps I am not asking the right people, but you are quite happy that things like ice-cream vans—
Mr Brown wanted to comment.
We already have a street traders licensing system, so we regularly engage with street traders on a variety of issues, and I cannot see why the selling of tobacco should be excluded. The bill could be a good opportunity for us to focus on problems relating to the retail of tobacco from mobile vehicles or by street traders. As I say, we already license street traders, and I see no reason why we cannot ask them to register for tobacco retail.
Like Dr Simpson, I am not at all sympathetic to tobacco and addictive products, but because we are not banning them, there are issues that we must deal with.
I return to my answer to Michael Matheson's question. I was asked to provide a personal view. I do not think that removing a product from display would change the buying habits of someone who purchased it regularly from a premises. If the product was not on display, it would not make them think that they had to buy it illicitly. I do not know whether they would stop buying it, but I do not see the link between the product not being visible in the place from which they purchased it for many years and their suddenly saying, "I'd better find an illicit seller."
Let us move back down the chain to the attempt to prevent sales to younger people. I am very much in favour of hammering those who sell illegally to people who are underage, but I am still slightly puzzled about the idea that cigarettes are an impulse buy. I struggle to see the evidence for that.
To a certain extent, putting such a defence in legislation is a retrograde step. The Children and Young Persons (Protection from Tobacco) Act 1991 removed the word "apparently" from the Children and Young Persons (Scotland) Act 1937, which said that it was an offence to sell to someone who apparently was underage. That followed similar legislation that dealt with fireworks. At one time, the legislation referred to people appearing to be underage, but if it is an offence to sell to someone who is underage, it is an offence full stop. We agree that if someone has formed the first part of the defence, and has made the checks and established that a person is not underage, what is the point of the second part?
What if you had somebody in front of you who, because of some genetic condition, looked very elderly—that is rare, but possible—and you did not challenge them because there seemed to be no reason to do so, given their physical appearance? Indeed, it might have been insulting to challenge them. I am talking about very unusual circumstances. However, an absolute test would not allow for the rare circumstances in which you could argue that no reasonable person could have known from looking at the individual concerned that they were under the age of 18.
You would love to be challenged, convener.
Yes. Thank you for that. No more Danish pastries for you. I was making a serious point.
We are puzzled as to why the second part of the defence has been inserted. I understand that it covers the occasional times when no reasonable person would assume that the person purchasing was under 18, such as in the example that you gave. Such a provision might need to be built in as part of a belt-and-braces approach, but the way in which that has been done would have the opposite effect: it would allow defence agents to bring a test purchase volunteer to court to try to persuade the sheriff that the defence could be satisfied. Bringing a test purchase volunteer to court would go against all the principles of volunteer test purchasing. Although the young people involved are generally 16 and a half, in some cases they are under 16. We try everything possible not to bring those young people to court. The provision would force businesses—in order to keep their licence—to ask for the test purchase volunteer to be produced in court so that the defence could be tested. That would be a retrograde step.
That is an interesting answer. I am just testing the argument.
No enforcement agency would ever take action in the example that you gave. Even in a less extreme example, it would clearly not serve the ends of justice to follow the letter of the law.
I am content.
The defence might try to bring a test purchaser to court, but the point is that the case might not get to court until several months, or even a year, later. The person who was 16 or 16 and a half at the time of the purchase would be 17 or 17 and a half when the case came to court. That would cause evidential difficulties, although we would take photographs of the test purchaser at the time to overcome such difficulties.
That is very useful. Your answers have allowed me to think through the issue more.
Trading standards would not use somebody who obviously looked over 18 to test purchase. If somebody in the example that the convener gave made a purchase, it is unlikely that a policeman or trading standards officer who was watching would say, "But I know that that person is under 18"; surely they would form the same opinion as the retailer.
Although an offence might have been committed, in those circumstances a prosecution would not serve the ends of justice. We will test that further. It is worth opening the argument up a bit.
I want to clarify a point. There is a difference between coming across that situation in a shop and using a volunteer test purchaser. A volunteer test purchaser is controlled by the national code of guidance, which is scrupulously fair—in my view, it is overfair—therefore we would never use someone who looked older. The test purchasers have to be 18 months under the age limit, so we would not use anyone over 16 and a half when we might take legal proceedings.
Perhaps you have undermined your argument. I will think about the position.
The argument was made that the trial comes some way down the line from the purchase. The defence in the bill might take account of a rare circumstance. However, that is not the risk that I have in mind; I am thinking of the large number of defence agents, who are able—as no doubt you were, convener—in exploiting every aspect of the law.
I was a civil practitioner—I divorced people.
The court would have before it a witness who looked considerably older, and the defence agent would advance that argument in open court. The second line of defence therefore opens up the possibility that a much larger percentage of people would challenge a prosecution, rather than the narrow percentage that the drafter of the legislation might have had in mind.
I am moving about on that point, but I will test it further with the minister.
Do you intend to prosecute the minister?
I do not—it might be the other way round.
Sticking with the statutory defence, East Dunbartonshire Council trading standards said in its written response to the committee's call for evidence that it was concerned about the wording of the statutory defence in section 4(2), which states:
We fully agree with that comment from East Dunbartonshire Council trading standards. That issue is part of why local authorities always encourage retailers to adopt a challenge 21 or challenge 25 approach. If retailers adopt only a challenge 18 policy, there is every chance that they will get it wrong, but if they take a challenge 25 approach, they will probably not mistake someone who is 16 and a half for someone who is 25. The retailer needs to seek that positive assurance first.
That is helpful.
The trading standards community was surprised to see that there was a penalty of £20,000 for non-registration. However, I accept that the fine has been set at that level in order to crack down on the illicit trade. I cannot speak for the judiciary, but I believe it is very unlikely that a sheriff would impose a fine of £20,000 on a legitimate seller who had not registered or had refused to register. It would be open to a sheriff to impose such a fine, but I imagine that the fine of £20,000 has been set because the alternative of a banning order is not available for illicit sellers, and therefore there is the possibility of a very high monetary fine or a custodial sentence. Although there appears to be a disparity, a fine of £2,500 for an underage sale or non-registration, or as a fixed penalty for a minor offence, seems reasonable, while the £20,000 fine simply exists to back up the law with teeth in dealing with illicit sellers.
For clarification, you said that if sellers do not want to register, they do not have to, but surely they do if they want to keep trading in tobacco products.
I am talking about illicit sellers who do not register.
Sorry, I thought you were talking about the others.
Is it appropriate to use subordinate legislation to set the penalties, as opposed to using primary legislation?
I must correct myself. You were right, convener—I made the point with reference to legitimate sellers. I was talking about people who simply refuse to register.
If they do not register, they will not be able to sell. Registration is not discretionary, it is mandatory, if they want to continue trading in tobacco products.
If someone took a stand, refused to register but continued to trade, the sanction of a £20,000 fine would be available.
That is right.
Would there be any flaw in the committee agreeing to ministers being able to alter through regulation the levels of fines, to match inflation and to address other considerations?
I have no view on the issue.
It is standard for the matter to be dealt with through regulations, so that we do not have to go through a whole bill procedure to change the levels of fines.
In its submission, SCOTSS states that it
I saw the passing the buck that took place between the witnesses.
The question was, will the ban apply to displays in airports in areas where people have passed through security? Although most trading standards legislation covers such areas, we do not go there often. We do not normally consider the activities that take place in those areas, apart from bar operations, as medium or high risk.
My point is that a product that is bought at duty free by someone who is travelling outwith the EU cannot be consumed in this country. That sets duty-free sales apart from all the other retailers that we are discussing. Does it make such sales different in any way?
The wording of the submission suggests that we see a difference, but that was not really the reason for our question. We were seeking clarity on whether the ban would cover sales in duty-free areas.
Mr Thomson, did you say in passing that you had problems with the definition of "tobacco business"?
Yes.
The bill states that a tobacco business
The definition is the foundation for our taking action against legitimate and illicit sellers. The use of the words "sale" and "retail" will present some operational difficulties if we want to be seen to be efficient and effective against illicit sellers, simply because "sale" means a concluded transaction. A member of the committee has already said how difficult it will be to enforce the provisions of the bill, as all the loopholes will be exploited. We are not dealing with people who have all the stuff displayed on trestle-tables—detection was simple in those days, but unfortunately they have gone. Now people secrete tobacco on their person and store it in places such as car parks. We must prove that people are in the tobacco business, which is defined by their having concluded a sale to someone, and that they are a retailer. Both present evidential difficulties. It makes things much simpler if we talk about supply, possession for supply and offer to supply.
That is a helpful point. I heard you make it in passing, but it goes to the heart of many of the issues that we are discussing. We now have it on the record.
I am concerned about the potential for trading standards officers in different local authorities to ramp up the way they handle fixed penalties. For example, for a particular offence, one local authority might decide to go straight to a banning order while another might decide only to issue a fixed-penalty notice. What guidance can be issued to assure retailers that a consistent approach is taken by different trading standards departments in different local authority areas?
There are good examples of the application of fixed-penalty regimes. For example, when the ban on smoking in public places was introduced, the Government issued quite clear guidance that allowed local authorities to apply the measure consistently. To be perfectly honest, I do not think that that will be a problem, as long as local authority officers receive guidance and instruction.
The Scottish Government's age-restricted products group, which was mentioned last week by Mrs Cuthbert and on which I sit, has agreed that enforcement officers will be issued with a code of guidance setting out general guidelines on what should be applied across the piece.
That is helpful. The bill team should have enlightened us on the issue last week.
Do you have complete jurisdiction over the whole of an airport, ferry terminal or other such area, or is there a distinction between what you might call the civilian side and the duty-free area on the other side of security?
I will answer that question, because I was tasked to look into the matter. There is absolutely no problem in that respect. However, one perceived problem in treating the duty-free area—for example, the one at Glasgow airport—differently might arise if there were also a chain of shops in the same area that would normally sell tobacco but which did not because they had to compete with the duty-free shops. You might, for example, find yourself allowing the duty-free shop to display tobacco products while banning the shops in the regular chain from doing so. In any case, trading standards officers enforce the law in front of and behind the security gate at all such premises.
Rhoda Grant has a teeny final question.
Michael Matheson and I were wondering about cigarette advertising in in-flight magazines. I understand that other laws apply when the plane leaves UK airspace, but what happens when the plane is on the ground? Perhaps that is not such a teeny question.
That is more to do with magazine advertising than tobacco display gantries.
But it is still about displaying tobacco.
The old joke was that if the airline was going to short measure you it would do so when the plane was outside UK airspace and out of our jurisdiction. Any planes in UK airspace or sitting on the ground are within our jurisdiction.
I thank everyone for giving evidence, particularly those who had a long wait. This session has been very helpful.