Tobacco and Vapes Bill – New Licensing Regime for tobacco products

Part 1 of the Bill extends to England and Wales, Part 2 extends to Scotland and Part 3 extends to Northern Ireland.

Jump to:

• Licensing of retail sales of tobacco products etc in England
• Retail licensing: Wales
• Retail licensing scheme in Northern Ireland
• Sale and distribution: Scotland

Licensing of retail sales of tobacco products etc in England

Clause 16: Prohibition of retail sales of tobacco products etc in England without a licence

• Clause 16 provides the Secretary of State with the power to make regulations regarding the granting of personal and premises licences.
• This clause prohibits the sale, exposure for sale, or possession for the purpose of sale (by the individual or another person) of tobacco products, herbal smoking products, cigarette papers, vaping or nicotine products by an individual in England, except under the authority of and in accordance with a personal licence. The Secretary of State may, by regulations, create exceptions to this prohibition. This provision will come into force when regulations for the licensing scheme are laid.
• This clause also prohibits a person from using or permitting the use of premises in England, to store for the purpose of their sale (by the person or another person), expose for sale, or supply tobacco products, herbal smoking products, cigarette papers, vaping, or nicotine products to retail customers except under the authority of and in accordance with a premises licence. The Secretary of State may, by regulations, create exceptions to this prohibition. This provision will come into force when regulations for the licensing scheme are laid.
• Before exercising the power to make regulations under this clause, the Secretary of State must consult. Further detail on what the licensing scheme regulations in England may include are set out in schedule 1. Any regulations made under clause 16 are subject to the affirmative resolution procedure.

Schedule 1: Retail licensing scheme: England

• This schedule details the regulations for a retail licensing scheme that may be made under the powers provided to the Secretary of State in clause 16 (Prohibition of retail sales of tobacco products etc in England without a licence). These provisions give further detail about what provisions made through regulations may include to provide clarity about the intended purpose of the regulation making powers. This schedule is for England only.
• The regulations must describe the local authority that will be the licensing authority and thus hold the responsibility for granting licences.
• The regulations may make provisions regarding the granting of a licence in England, including provisions which mean a licensing authority could not grant a licence to a premises in a particular area (for example, proximity to a school), or limiting the number of licences within a particular area. Provisions may also require a licensing authority to inspect a premises to ensure it meets regulations before the granting of a licence.
• The regulations may allow a licensing authority to charge a fee on application for a licence. This would include fees required at the point of any renewal of a licence. The amount of any fee is to be set in regulations and will be able to account for the cost of exercising functions in connection with the licensing scheme including administrative and enforcement costs of the scheme. The regulations may require the licensing authority to pay a proportion of the fees collected to any other person with functions under or in connection with the licensing scheme (clauses 16-18 or the regulations), to ensure fees collected can be used for enforcement of the scheme in a situation where the licensing authority is different from the enforcement authority.
• The regulations may also make provisions regarding the conditions of the licence, namely the requirements that licence holders will need to meet to maintain a licence for the sale or supply of relevant products. This could include, for example requiring that retailers adhere to specific tobacco and vape regulations (such as age of sale regulations) or displaying a licence within a retail premise.
• The regulations may also make provisions regarding the duration of the licence, which is -self explanatory.
• The regulations may make provisions for the publication of licence information by the licensing authority. Publishing a list of licensed retailers may support enforcement of the licensing scheme.
• The regulations will establish the reviews and appeals process for decisions made on granting a licence. They must specify when a person may request a review of a decision taken under the regulations and give a person the right of appeal to a magistrates’ court against a decision taken on a review. This will enable an independent decision. There may be a time limit for requesting reviews or initiating appeals.
• The regulations may require a licensing authority to adhere to guidance published by the Secretary of State when carrying out its functions under the licensing regulations. Guidance will support the implementation of the regulations by licensing authorities.

Clause 17: Offences in connection with licences: England

• Clause 17 sets out that anyone who breaches the prohibitions set out in clause 16(1) and 16(2) commits an offence.
• This clause also makes it an offence if a person provides false or misleading information to a licensing authority in, or in connection with, an application for the grant of a personal or premises licence; or in carrying out of any other obligation imposed by or under licensing regulations. It is only an offence if the information is false or misleading in a material respect, and the person knows, or ought to reasonably know this about the information.
• A person convicted of an offence under clause 17(1) or 17(2) may receive a fine where there is no maximum amount. As an alternative to a criminal prosecution, local weights and measures authorities may issue a fixed penalty notice for these offences under the provisions in clause 37 (Fixed penalty notices).
• Upon conviction of the offence under clause 17(1) (prohibition of retail sales of tobacco products etc in England without a licence as set out in clause 16(1) and (2)) a court may make an order as to what happens to the relevant products to which the offence(s) relate. This may include forfeiture and destruction of the relevant products.

Clause 18: Financial penalties for breach of licence conditions: England

• Clause 18 introduces financial penalties which may be imposed for the breach of conditions attached to a personal or premises licence in England, provided the breach is not a criminal offence under clause 17 (Offences in connection with licences: England). These financial penalties are civil penalties and can be issued by a local weights and measures authority.
• This clause sets the maximum amount of the financial penalty at £2,500 and provides the Secretary of State with the power to change this maximum amount to account for inflation and so that the financial penalty amount remains proportionate. Any regulations made under clause 18 are subject to the negative resolution procedure as the scope of the power is narrow.
• Further details on financial penalties for breach of licence conditions are set out in Schedule 2.

Schedule 2: Financial penalties for breach of retail licence conditions: England

• This schedule sets out the procedure for local weights and measures authorities when imposing financial penalties for breach of licence conditions, introduced in clause 18 (Financial penalties for breach of licence conditions). This schedule is for England only.
• Before imposing a financial penalty, a local weights and measures authority must issue a written notice of intent and allow for a period of representation, to give the person the opportunity to challenge the proposed financial penalty. If, after the period for representation, the local authority decides to impose the financial penalty, they must give a final written notice.
• Both the notice of intent, the final notice can be withdrawn or amended to reduce the penalty amount at any time by written notice.
• A person has the right to appeal to the magistrates’ court against the decision to impose a financial penalty or the amount of the penalty. This will enable an independent decision. This schedule establishes the appeals procedure to be followed.
• If a person fails to pay the whole or part of the financial penalty within the given period, the unpaid amount may be recovered as if it were payable under a county court order.
• Any proceeds received from financial penalties must be returned to the Consolidated Fund once enforcement costs to investigate and issue the penalty have been deducted by the local weights and measures authority.

Retail licensing: Wales

Clause 19: Prohibition of retail sales of tobacco products etc in Wales without a licence

• Clause 19 provides Welsh Ministers with the power to make regulations regarding the granting of personal and premises licences.
• This clause prohibits the sale, exposure for sale, or possession for the purpose of sale (by the individual or another person) of tobacco products, herbal smoking products, cigarette papers, vaping or nicotine products by an individual in Wales, except under the authority of and in accordance with a personal licence. Welsh Ministers may, by regulations, create exceptions to this prohibition. This provision will come into force when regulations for the licensing scheme are laid.
• This clause also prohibits a person from using or permitting the use of premises in Wales, to store for the purpose of their sale (by the person or another person), expose for sale, or supply tobacco products, herbal smoking products, cigarette papers, vaping or nicotine products to retail customers except under the authority of and in accordance with a premises licence. Welsh Ministers may, by regulations, create exceptions to this prohibition. This provision will come into force when regulations for the licensing scheme are laid.
• The licensing authority responsible for granting of personal and premises licences in Wales will be the relevant county or county borough council.
• Before exercising the power to make regulations under this clause, Welsh Ministers must consult. Further detail on what the licensing scheme regulations in Wales may include are set out in Schedule 3. Any regulations made under clause 19 are subject to the affirmative resolution procedure.

Schedule 3: Retail Licensing Scheme: Wales

• This schedule details the regulations for a retail licensing scheme that may be made under the powers provided to Welsh Ministers in clause 19 (Prohibition of retail sales of tobacco products etc in Wales without a licence). These provisions give further detail about what provisions made through regulations may include to provide clarity about the intended purpose of the regulation making powers. This schedule is for Wales only.
• The regulations may make provisions regarding the granting of a licence in Wales, including provisions which mean a licensing authority could not grant a licence to a premises in a particular area (for example, proximity to a school), or limiting the number of licences within a particular area. Provisions may also require a licensing authority to inspect a premises to ensure it meets regulations before the granting of a licence.
• The regulations may allow a licensing authority to charge a fee on application for a licence. This would include fees required at the point of any renewal of a licence. The amount of any fee is to be set in regulations and will be able to account for the cost of exercising functions in connection with the licensing scheme including administrative and enforcement costs of the scheme. The regulations may require the licensing authority to pay a proportion of the fees collected to any other person with functions under the licensing scheme (clauses 19-21 or the regulations), to ensure fees collected can be used for enforcement of the scheme in a situation where the licensing authority is different from the enforcement authority.
• The regulations may also make provisions regarding the conditions of the licence, namely the requirements that licence holders will need to meet to maintain a licence for the sale or supply of the relevant products. This could include, for example requiring that retailers adhere to specific tobacco and vape regulations (such as age of sale regulations) or displaying a licence within a retail premise.
• The regulations may also make provisions regarding the duration of the licence, which is selfexplanatory.
• The regulations may make provisions for the publication of licence information by the licensing authority. Publishing a list of licensed retailers may support enforcement of the licensing scheme.
• The regulations will establish the reviews and appeals process for decisions made on granting a licence. They must specify when a person may request a review of a decision taken under the regulations and give a person the right of appeal to a magistrates’ court against a decision taken on a review. This will enable an independent decision. There may be a time limit for requesting reviews or initiating appeals.
• The regulations may require a licensing authority to adhere to guidance published by Welsh Ministers when carrying out its functions under the licensing regulations. Guidance will support the implementation of the regulations by licensing authorities.

Clause 20: Offences in connection with licences: Wales

• Clause 20 sets out that anyone who breaches the prohibitions set out in clause 19(1) and 19(2) commits and offence.
• This clause also makes it an offence if a person provides false or misleading information to a licensing authority in, or in connection with, an application for the grant of a personal or premises licence; or in carrying out of any other obligation imposed by or under licensing regulations. It is only an offence if the information is false or misleading in a material respect, and the person knows, or ought to reasonably know this about the information.
• A person convicted of an offence under clause 20(1) or 20(2) may receive a fine where there is no maximum amount. As an alternative to a criminal prosecution, Local Authority Trading Standards in Wales may issue a fixed penalty notice for these offences under the provisions in clause 37 (Fixed penalty notices).
• Upon conviction of the offence under clause 20(1) (prohibition of retail sales of tobacco products etc in Wales without a licence as set out in clause 19(1) and (2)) a court may make an order as to what happens to the relevant products to which the offence(s) relate. This may include forfeiture and destruction of the relevant products.

Clause 21: Financial penalties for breach of licence conditions: Wales

• Clause 21 introduces financial penalties which may be imposed for the breach of conditions attached to a personal or premises licence in Wales, provided the breach is not a criminal offence under clause 19 (Offences in connection with licences: Wales). These financial penalties are civil penalties and can be issued by a local weights and measures authority.
• This clause sets the maximum amount of the financial penalty at £2,500 and provides Welsh Ministers with the power to change this maximum amount to account for inflation and so that

the financial penalty amount remains proportionate. Any regulations made under clause 21 are subject to the negative resolution procedure as the scope of the power is narrow.

• Further details on financial penalties for breach of licence conditions in Wales are set out in Schedule 4.

Schedule 4: Financial Penalties for Breach of Retail Licence Conditions: Wales

• This schedule sets out the procedure for local weights and measures authorities (e.g. Local Authority Trading Standards in Wales) when imposing financial penalties for breach of licence conditions, introduced in clause 21 (Financial penalties for breach of licence conditions: Wales).

This schedule is for Wales only.

• Before imposing a financial penalty, a local weights and measures authority (e.g. Local Authority Trading Standards in Wales) must issue a written notice of intent and allow for a period of representation, to give the person the opportunity to challenge the proposed financial penalty. If, after the period for representation, the local authority decides to impose the financial penalty, they must give a final written notice.
• Both the notice of intent, the final notice can be withdrawn or amended to reduce the penalty amount at any time by written notice.
• A person has the right to appeal to the magistrates’ court against the decision to impose a financial penalty or the amount of the penalty. This will enable an independent decision. This schedule establishes the appeals procedure to be followed.
• If a person fails to pay the whole or part of the financial penalty within the given period, the unpaid amount may be recovered as if it were payable under a county court order.
• Any proceeds received from financial penalties must be returned to the Welsh Consolidated Fund once enforcement costs to investigate and issue the penalty have been deducted by the local weights and measures authority (e.g. Local Authority Trading Standards in Wales).

Clause 22: Repeal of register of retailers of tobacco and nicotine products in Wales etc

169  Clause 22 amends the Public Health (Wales) Act 2017 and is self-explanatory. The effect is to repeal existing provisions for a retailer register in Wales once licensing scheme provisions in this Bill come into force by order of the Welsh Ministers.

 

Clause 85: Prohibition of retail sales of tobacco products etc without a licence

• Clause 85 inserts new Articles 4A (Prohibition of retail sales of tobacco products etc without a licence), 4B (Offences in connection with licences) and 4C (Financial penalties for breach of licence conditions) into the Tobacco Retailers Act (Northern Ireland) 2014 to enable the introduction of a retail licensing scheme for the sale of tobacco products, herbal smoking products, cigarette papers, vaping and nicotine products in Northern Ireland.
• Article 4A provides the Department of Health in Northern Ireland with the power to make regulations regarding the granting of personal and premises licences.
• Article 4A prohibits the sale, exposure for sale, or possession for the purpose of sale (by the individual or another person) of tobacco products, herbal smoking products, cigarette papers, vaping or nicotine products by an individual in Northern Ireland, except under the authority of and in accordance with a personal licence. This provision will come into force when regulations for the licensing scheme are laid.
• Article 4A also prohibits a person from using or permitting the use of premises in Northern Ireland, to store for the purpose of their sale (by the person or another person), expose for sale, or supply tobacco products, herbal smoking products, cigarette papers, vaping or nicotine products to retail customers except under the authority of and in accordance with a premises licence. This provision will come into force when regulations for the licensing scheme are laid.
• Article 4A also provides the Department of Health in Northern Ireland with the power to create, by regulations, exceptions to the prohibitions in Article 4A(1) or (2).
• Before excising the power to make regulations under the new Article 4A, the Department of Health in Northern Ireland must consult. Further detail on what the licensing scheme regulations in Northen Ireland may include are set out in Schedule 11.
• Article 4B sets out that anyone who breaches the prohibitions set out in Article 4A(1) or (2) commits an offence. It also makes it an offence if a person provides false or misleading information to a licensing authority in, or in connection with, an application for the grant of a personal or premises licence; or in carrying out of any other obligation imposed by or under licensing regulations. It is only an offence if the information is false or misleading in a material respect, and the person knows, or ought to reasonably know this about the information.
• A person convicted of a licensing offence in Northern Ireland may receive a fine of up to level 5 on the standard scale in Northern Ireland (currently set at £5,000). As an alternative to a criminal prosecution, district councils may instead issue a fixed penalty notice for these offences provided for under the Tobacco Retailers Act (Northern Ireland) 2014. The value of the fixed penalty notice will be established in regulations under section 12(8) of the Tobacco Retailers Act (Northen Ireland) 2014, as is consistent with the current approach to setting fixed penalty notice values in Northern Ireland.
• Upon conviction of the offence under Article 4B(1) a court may make an order as to what happens to the relevant products to which the offence(s) relate. This may include forfeiture and destruction of the relevant products.
• Article 4C introduces financial penalties which may be imposed for the breach of conditions attached to a personal or premises licence in Northern Ireland, provided the breach is not a criminal offence under Article 4B. These financial penalties are civil penalties and can be issued by district councils. The maximum amount of the financial penalty is set at £2,500 and provides the Department of Health in Northern Ireland with the power to change this maximum amount to account for inflation and so that the financial penalty amount remains proportionate.
• Further details on financial penalties for breach of licence conditions are set out in Schedule 12.
• This clause also introduces Schedule 13 and is self-explanatory.

Schedule 11: Retail licensing scheme in Northern Ireland

• This schedule inserts new schedule 1 to the Tobacco Retailers Act (Northern Ireland) 2014.
• This new schedule 1 details the regulations for a retail licensing scheme that may be made under the powers provided to the Department of Health in Northern Ireland new Article 4A (Prohibition of retail sales of tobacco products etc without a licence) of the Tobacco Retailers Act (Northern Ireland) 2014 inserted by clause 85 (Prohibition of retail sales of tobacco products etc without a licence) of this Bill. These provisions give further detail about what provisions made through regulations may include to provide clarity about the intended purpose of the regulation making powers. This schedule is for Northen Ireland only.
• The regulations must specify a council that will be the licensing authority and thus hold the responsibility for granting licences.
• The regulations may make provisions regarding the granting of a licence, including provisions which mean a licensing authority could not grant a licence to a premises in a particular area (for example, proximity to a school), or limiting the number of licences within a particular area. Provisions may also require a licensing authority to inspect a premises to ensure it meets regulations before the granting of a licence.
• The regulations may allow a licensing authority to charge a fee on application for a licence. This would include fees required at the point of any renewal of a licence. The amount of any fee is to be set in regulations and will be able to account for the costs of exercising functions in connection with the licensing scheme including administrative and enforcement costs of the scheme. The regulations may require the licensing authority to pay a proportion of fees collected to any other persons with function under the licensing scheme, to ensure fees collected can be used for enforcement of the scheme in a situation where the licensing authority is different from the enforcement authority.
• The regulations may also make provisions regarding the conditions of the licence, namely the requirements that licence holders will need to meet to maintain a licence for the sale of the relevant products. This could include, for example requiring that retailers adhere to specific tobacco and vape regulations (such as age of sale regulations) or displaying a licence within a retail premise.
• The regulations may also make provisions regarding the duration of the licence, which is selfexplanatory.
• The regulations may make provisions for the publication of licence information by the licensing authority. Publishing a list of licensed retailers may support enforcement of the licensing scheme.
• The regulations will establish the reviews and appeals process for decisions made on granting a licence. They must specify when a person may request a review of a decision taken under the regulations and give a person the right of appeal to a magistrates’ court against a decision taken on a review. This will enable an independent decision. There may be a time limit for requesting reviews or initiating appeals.
• The regulations may require a licensing authority to adhere to guidance published by the Department of Health in Northern Ireland when carrying out its functions under the licensing regulations. Guidance will support the implementation of the regulations by licensing authorities.