Correct on the date of publication - 4 March 2024
Question:
Under the Children and Young Persons Act 1933, Police can seize tobacco products from persons under 16. Would a vape or e-cigarette device be included under the wording of "intended as a substitute for tobacco" within subsection 5?
Answer:
From 1st October 2015 the offence of selling ‘nicotine products’ to under 18’s, was extended to include e-cigarettes and was created under regulation 3 of the Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015 and section 92(2) of the Children and Families Act 2014. Purchase of such products by a person over the age of 18 on behalf of an individual aged under 18 was also made an offence under section 91 of the same Act.
When the offences discussed above were legislated, amendments were also made to sections 12A-D of the Children and Young Persons Act 1933 which also deal with the sale of tobacco / nicotine products to persons under 18. The changes made meant that any reference to ‘tobacco’ was changed to ‘tobacco or nicotine product’, therefore extending the provisions to e-cigarettes. However, such amendments were not extended to section 7 of the Children and Young Persons Act 1933, which is the section containing the power to seize tobacco or cigarette papers from minors.
Therefore, although there is a power to seize tobacco / cigarette papers from a minor under section 7(3) of the Children and Young Persons Act 1933, the same power does not exist in relation to nicotine products such as e-cigarettes and vaping products. Furthermore, section 92(11) of the Children and Families Act 2014 makes the distinction between nicotine products and tobacco which implies that they are not to be treated the same unless expressly stated.
In conclusion it appears that there is no power under section 7(3) of the 1933 Act to seize e-cigarettes and we are unaware of any other seizure power that would permit this. Whether this anomaly is an omission or deliberate drafting of the legislation is unclear.
