We are often asked what the law is on using electronic or e-cigarettes (“vaping”) in public places in Scotland.
Is vaping allowed in public places?
E-cigarettes and other Nicotine Vapour Products (NVPs) are not included in the Smoking, Health and Social Care (Scotland) Act 2005, which is the legislation banning smoking in enclosed public places in Scotland. The 2005 Act only applies to products containing tobacco.
There is no equivalent legislation which prohibits vaping in public places. However, many organisations, including health boards, local authorities and chains of cafes and pubs have introduced their own policies banning the use of e-cigarettes on their premises. As they are not legal obligations, enforcement is limited.
Local authorities can decide on individual policies relating to smoking. For example, Edinburgh City has banned smoking in children’s play parks and Dundee City is currently trying to pass similar measures through their council.
Although these policies do exist, they are not enforceable through the use of statutory fines, but council staff do have the power to remove any person in violation of them. There is no legislative reason why similar policies cannot be introduced in other public areas such as those surrounding schools, as long as they are local authority property.
By contrast, the 2005 Act made it an offence for someone to smoke tobacco products in wholly or substantially enclosed public premises (with a few exceptions, including designated rooms in care homes), attracting a fine of up to £1,000. More recently, this legislative ban was extended to smoking tobacco products within a designated perimeter outside NHS hospitals. Again, vaping was not covered by this change.
What legal restrictions are there on NVPs?
There are laws dealing with other aspects of NVPs. They include restrictions on the sale and purchase of NVPs which have been in force since last year.
A Scottish Government news release dated 1 April 2017 stated that:
“From today (1 April), new rules apply to the sale and purchase of tobacco and nicotine vapour products – known as NVPs or e-cigarettes. This legislative changes mean that:
• it is illegal to sell NVPs to anyone under 18
• it is illegal to buy NVPs for someone under 18
• all retailers selling tobacco or NVPs will need to be registered
• stores will need to have an age verification policy for sales of tobacco and NVPs
• an unauthorised person under 18 will not be able to sell these products”
These changes were introduced by the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016. It also bans NVP vending machines, and proposes a number of restrictions around advertising NVPs which have yet to come into effect.
Harmful or helpful? – Some different approaches to vaping
There has been considerable debate as to what role (if any) vaping should have in smoking cessation strategies and how it should be regulated. Research has considered the possible dangers of the chemicals in NVPs and passive vaping, as well as concerns about “re-normalising” smoking and that they might act as a gateway to smoking tobacco.
NHS Health Scotland’s guidance on smoking on NHS grounds states that:
“E-cigarettes are not allowed in NHS Buildings or on the majority of NHS grounds. This is because they are not currently regulated as a tobacco product or a medicine in the UK, and we can only recommend products that are known to be safe and effective. E-cigarettes can also mimic the look of smoking, which may make it harder for others not to smoke”.
However, NHS Greater Glasgow and Clyde now permits vaping on its grounds in an attempt to cut tobacco smoking rates, but NVPs can’t be used near entrances to any health facilities.
The latter approach ties in with other research and guidance that focuses instead on the benefits of NVPs in helping people to quit tobacco smoking. NHS Health Scotland and other organisations, including ASH Scotland and the Royal College of Physicians, released a consensus statement on e-cigarettes in September 2017. It says that:
“There is now agreement based on the current evidence that vaping e-cigarettes is definitely less harmful than smoking tobacco. Although most e-cigarettes contain nicotine, which is addictive, vaping carries less risk than smoking tobacco. Thus, it would be a good thing if smokers used them instead of tobacco”.
In 2014 the Scottish Government launched A Consultation on Electronic Cigarettes and Strengthening Tobacco Control in Scotland. Its analysis of responses at that time concluded that: “A small majority thought that action should be taken on the use of e-cigarettes in enclosed public spaces”.
At present, the Scottish Government does not plan to legislate on vaping in public places. However, it intends to address inconsistencies in health boards’ policies on the use of e-cigarettes on NHS hospital grounds in its forthcoming tobacco control strategy. It is also gathering evidence on the promotion and advertising of NVPs, and is developing proposals for inclusion in its strategy on how to best monitor the growing evidence on NVPs and the new “heated tobacco products” which have been marketed by tobacco manufacturers as alternatives to cigarettes.
Jennifer Bruce
Enquiries Officer