By Gareth Hughes – Barrister – Keystone Law

 

I. Introduction

It is a truth — not quite universally acknowledged, but murmured in the corridors of every licensing practitioner’s offices— that government intervention seldom stops where it says it will. 

The Tobacco and Vapes Bill, currently winding its way through Parliament, is no exception. Presented under the banner of “protecting the next generation,” this ambitious piece of legislation promises nothing less than the total transformation of how tobacco and vape products are sold in England and Wales.

What begins as public health concern ends — as such matters often do — in a licensing regime. And for those in the business of hospitality, retail, or the regulation thereof, the implications are considerable.

The Bill does three main things and each of them are seismic (there are other parts of the Bill relating to notices and advertising (which I do not proposes to deal with in this short article)

1. It establishes a licensing scheme for tobacco and vape retailers and wholesalers.

2. It prohibits the sale of tobacco to anyone born on or after 1 January 2009 — not just until they come of age, but forever.

3. It arms local authorities and trading standards officers with sweeping powers of inspection, enforcement, and prohibition.

 

As with the Licensing Act 2003, what began as an effort to civilise a market may well encumber it — with bureaucracy, inconsistency, and legal uncertainty. And so we turn to the Bill with a lawyer’s eye and a citizen’s suspicion, to ask not only what it says, but what it means for the real world of retail tills, vape shops, late-night venues, and licensed premises.

 

II. The Licensing Regime: A New Architecture of Control

It is, perhaps, an irony worthy of Sir Humphrey Appleby that while one part of the government declares an intent to “free up” business from bureaucratic tangles, another quietly knits a new net. The licensing regime proposed by the Tobacco and Vapes Bill marks the most substantial intervention in the sale of tobacco products since the early 2000s.

At the heart of  the proposal lies a simple idea: only licensed persons may sell tobacco or vape products, whether retail or wholesale, and any such licence may be granted, suspended or revoked by a yet-to-be-named authority, most likely a local licensing authority or a magistrates court.

Although the detail has been largely deferred to secondary legislation of which no draft as yet appeared — a legislative habit that would make even Dickens’s Mr. Bumble grumble — we are told to expect:

– Eligibility criteria, likely to include background checks and tax compliance;

– Ongoing obligations, including record-keeping and staff training;

– Fees, not insignificant, and potentially scaled by turnover or sales volume;

– And crucially, enforcement mechanisms, including criminal sanctions for breach.

This is a licensing regime in the full sense of the Licensing Act 2003 — with all the attendant compliance risk and liability. One imagines a day not too far distant when Westminster’s model conditions will include, alongside door staff and CCTV, a requirement that “no sale of tobacco or nicotine product shall take place save by or under the authority of a person holding a valid retail licence.”

 

III. The Generational Ban: A Ratcheting Prohibition

The so-called “generational ban” on tobacco sales to those born on or after 1 January 2009 — a date whose surreal specificity feels almost satirical — is another bold stroke. If enacted, it would make the UK the first country in the world to legislate a permanent, incrementally expanding cohort of adults who may never legally buy tobacco.

To be plain: an 18-year-old in 2026 could lawfully purchase cigarettes. A 17-year-old born a few months later could not — not in 2027, not in 2037, not ever.

The enforcement of this policy becomes a practical labyrinth. Underage sales enforcement is familiar territory — but now, age itself is no longer the determinant. Instead, staff must check year of birth. No longer is it enough to train to “Challenge 25”; businesses must now train to challenge 2009!

The government has floated the idea of a digital age-verification tool or mandatory signage, but these are band-aids on a wound of legislative complexity. One wonders — as Coward might have said — whether the well-intentioned bureaucrat who proposed this ever actually tried to run a till on a Friday night in a convenience store in Hackney.

 

IV. Implications for Retail and Hospitality

For the hospitality and retail sectors, the Bill’s consequences are multifaceted:

– Hospitality venues that stock cigars or allow smoking in outdoor areas may be drawn into the licensing regime although the government has now made it relatively clear that beer gardens will not be subject to the smoke free places provisions

– Retailers will face licensing costs, compliance burdens, and enforcement risk, especially across boroughs with divergent interpretations.

– Staff training and internal policies will need updating, especially around ID checks and signage.

What matters most is certainty — and at present, the Bill gives us precious little of it.

 

V. Enforcement and Local Authority Powers

Trading standards officers are to be given enhanced powers — including entry, inspection, seizure and the right to issue prohibition notices and fixed penalties. These are quasi-criminal powers, often wielded with scant oversight.

The appeal mechanisms, though hinted at, are undefined. And the lack of judicial oversight or independent review is troubling. In effect, we are empowering borough officers to make decisions with criminal and commercial consequences, in real time, with little  accountability.

 

VI. Concluding Observations

If the Licensing Act 2003 marked the domestication of alcohol through regulation, the Tobacco and Vapes Bill may herald the beginning of the end for commercial tobacco sales in England and Wales.

And yet, for all its ambition, it raises more questions than it answers. What is the long-term intent? A smoke-free generation, or the slow suffocation of the sector? Will enforcement be fair, or fragmented? And will the courts — when they are finally invited in — find these provisions proportionate, rational, and lawful?

The prudent operator will prepare now. The prudent adviser will read every clause. And the prudent government, if there is such a thing, will remember that in regulating markets, it also regulates lives.

As lawyers, we do not pass judgment on policy. But as practitioners, we must ensure that those caught in the tangle of its language are not — like Kafka’s Josef K — punished without knowing the charge.