IEA blog: What problem would a vaping ban solve?

By Christopher Snowdon

The government is wasting no time in using the Henry VIII powers it granted itself in the Tobacco and Vapes Bill. Although that Bill has not yet become law, the Department of Health and Social Care (DHSC) is already consulting on a vaping ban that the Bill will allow the government to pass using secondary legislation. The proposals are far more extensive than many people realise. It will apply to more than five million private buildings and will make business owners legally responsible for prohibiting e-cigarette use in all the places that smoking is currently banned.

The government would like to pass this legislation with the minimum of public and parliamentary debate. Its Impact Assessment (IA) suggests that it does not really know what it is hoping to achieve and has no idea what the consequences will be. It is a solution looking for a problem.

The IA offers two possible objectives for a indoor vaping ban: firstly, reducing people's exposure to the “potential risks” of “second hand vaping” and, secondly, reducing the number of people who vape “whilst being mindful of the role vapes can play as an effective quit aid for adult smokers.”

Secondhand vaping

A number of studies have looked at the impact of secondhand e-cigarette vapour on bystanders. In various experiments, levels of particulate matter, cotinine (a biomarker for nicotine) and several other chemicals have been measured in the air during and after an e-cigarette has been used. In some studies, researchers have ‘exposed' non-vapers to e-cigarette vapour in a confined space and measured levels of certain chemicals in the blood or urine. I have written about these studies in detail elsewhere, but the main finding is that, under realistic testing conditions, the levels recorded are very small, often undetectable, and comfortably below the safe limits for indoor and outdoor air quality.

When Public Health England looked at the issue in 2016, it concluded that “there is no evidence of harm to bystanders from exposure to e-cigarette vapour” and advised that vaping “should not routinely be included in the requirements of an organisation's smokefree policy”. In its Impact Assessment, DHSC admit that the evidence of harm from passive vaping is “limited” and therefore do not try to monetise the “benefits” of banning it in every workplace, pub and club in the land. The idea that “secondhand vapour” poses any kind of health threat to third parties is wild speculation. One might as well ban hot drinks, cooked food and candles.

Reducing the number of vapers

It is not clear why reducing the number of people who vape is an appropriate goal for government, let alone why it is important enough to require coercion on private property. E-cigarettes are a legal, low-risk product that can only be purchased by consenting adults. Reducing use among minors is a legitimate policy objective, but that is hardly likely to be advanced by banning vaping in the workplace.

In the IA, DHSC says that it wants to reduce “vaping prevalence, particularly around children and young people, but also non-smoking adults with the aim of reducing attractiveness and uptake whilst being mindful of the role vapes can play as an effective quit aid for adult smokers.” This is an extraordinary basis for the creation of a new criminal offence. DHSC is saying that adults should be prevented from vaping in sight of other people in case other adults decide to emulate them. It is essentially saying that a law is needed to force individuals to set a good example to others. I can think of no precedent for this.

It is highly debatable whether making people go outside to vape will make them less visible to the general public. Will it make fewer people vape? DHSC admits that it does not know, nor can it be sure whether there would be any societal benefits if it did. The most it can say is that if people stopped vaping (and using heated tobacco) “there is a possibility that the health of those no longer using heated tobacco products, or vaping improves” (my italics). Remarkably for a government Impact Assessment, it doesn't monetise any potential benefits because “we cannot conclusively say whether these policy options will impact smoking, heated tobacco product, or vaping prevalence or consumption, and therefore whether there will be an improvement on health.”

Still more remarkably for an Impact Assessment of a putative health policy from the Department of Health and Social Care, the authors give an assurance to the tobacco industry that it has nothing to worry about:

“Tobacco manufacturers are not expected to be directly affected by this legislation as they will likely only be impacted if consumption of products fall.”  

The makers of tobacco products arguably stand to benefit from a vaping ban because the most likely outcome is that it will indeed reduce the number of vapers, but only because some ex-smokers go back to smoking and some would-be quitters decide not to switch to vaping. There is ample evidence from a range of studies showing that policies which discourage vaping have the unintended consequence of encouraging smoking. This is true of flavour bans, advertising bans and e-cigarette taxes. Less research has been done into vaping bans, but it seems to be true of those too. Indeed, it would be surprising if it wasn't since the freedom to use e-cigarettes in public places, albeit only if the owner permits it, gives vaping a competitive edge over smoking. If people have to go outside to vape, they might rationally decide to smoke instead, because nicotine from cigarettes reaches a higher peak and stays in the bloodstream for longer than nicotine from vapes.

DHSC admits that banning vaping by law in millions of buildings could lead to “a slowing of smoking cessation at a societal level” and that “policies which reduce the appeal of vaping products may however have unintended consequences.” It says that it has “tried to mitigate against this” by making the vaping ban slightly less draconian than the smoking ban, by which they mean that they are going to allow people to vape outside hospitals. The idea that this would give vaping any meaningful advantage over smoking is risible.

The IA pays far too little attention to the most obvious consequence of a vaping ban. Since vapers are overwhelmingly ex-smokers, there is a fundamental contradiction in DHSC's stated aim of cutting the number of vapers “whilst being mindful of the role vapes can play as an effective quit aid for adult smokers”. A deterrent against vaping is, in effect, an inducement to smoke. Thanks to years of misinformation and scare stories, most people already believe that vaping is at least as dangerous as smoking. And thanks to excessive tobacco taxation, the black market is supplying cigarettes to anyone who wants them for less than it will cost people to vape once the e-cigarette tax is introduced in October 2026. From a health perspective, the government is pushing all the incentives in the wrong direction.

The costs

The IA does not have enough confidence in the policy to attribute a single penny to it as a ‘benefit'. This is highly unusual. But it is able to make a partial estimate of what the policy will cost. It says that the various new restrictions on smoking outdoors and vaping and heated tobacco use indoors will cost £531.8 million, mostly from businesses having to put up new signs and train employees. This is not a trivial price for the hard-pressed hospitality industry to pay for a policy that will drive some of its customers away. Many pubs already ban vaping of their own volition, but there is a big difference between having a private policy that can be enforced at the owner's discretion and having a legal obligation not to allow vaping at any time. As with the smoking ban, it will be the proprietor, not the individual, who will be fined for non-compliance.

Businesses will face further costs if they currently permit vaping and lose customers after the ban is introduced. Plenty of pubs, bars, clubs and casinos are in this position and there has been no outcry from the general public about vaping being permitted in them. The authors of the IA say that they cannot be sure that businesses will lose customers from banning vaping and so they don't attempt to put a price on it, but it is a major concern for many in the trade.

Last but not least, we must consider the wellbeing and life satisfaction of 5.6 million adults who will be legally prohibited from vaping from millions of buildings, including - for some people - buildings they own and work in. A ban on vaping would be deeply illiberal; an example, perhaps, of pathological altruism (“behaviour in which attempts to promote the welfare of another, or others, results instead in harm”). In a bizarre section of the IA, the authors imply that the government would be doing vapers a favour by casting them outdoors:

“We acknowledge that under ‘rational choice' assumptions, the restriction of locations where individuals can vape may result in a loss of consumer surplus. However, it can also be argued that becoming free of addiction improves consumer surplus.”

Aside from the fact that a vaping ban is not going to free anybody from addiction, addiction is only a problem if the behaviour is blatantly self-destructive, which does not seem to be the case with e-cigarette use (or caffeine use, which also results in trace quantities of chemicals being emitted into the air). The authors of the IA resort to this rather Orwellian definition of freedom because it allows them to duck the hard fact - which they acknowledge - that stopping people from doing the things they want to do imposes a cost of them, a cost that should properly be accounted for in an Impact Assessment.

On the flip-side, the IA does consider the consumer surplus of people who might enjoy not being around vapers, although it does not attempt to put a monetary value on this either. Some readers may find the ‘nuisance factor' to be the most compelling argument for a ban, but why should the desire of some non-vapers to avoid vaping everywhere trump the right of all vapers to vape somewhere? Some people find dogs annoying, but there is no national policy on dogs in pubs. Like vaping, they are permitted in some pubs and not in others, but that is a decision taken by the owner of the property to suit the preferences of his clientele. Some people found smoking in pubs annoying but the smoking ban only came about when the government was persuaded that it posed a non-trivial health risk to staff. The same is clearly not true of vaping. In the absence of a substantive health risk, a free market between businesses with different rules should prevail.