This past week has seen a continuation of different aspects of the debate about e cigarettes. Neal Roff’s helpful and thoughtful blog for people new to using e cigarettes http://stormchildsblog.blogspot.co.uk/ was published. And the equally helpful UKCTAS report on a depressingly “bad science” World Health Organization position statement was published http://ukctas.net/news/commentary-on-WHO-report-on-ENDS&ENNDS.html
This report details the results of responses from local authorities to Freedom of Information Requests about vaping and smoking policies, sent earlier this summer.
“Councils ignoring PHE advice”
The report headline on their twitter feed says “87% of councils ignore Public Health England advice” on vaping being treated differently You can read their comment posts and the report here http://www.freedomtovape.net/new_report_from_freedom_to_vape_87_per_cent_of_uk_councils_are_ignoring_advice_from_public_health_england?recruiter_id=107
Separately, another blog called vapers in power has published a blog linking to the “write to them” website encouraging people to write to local councillors about their policies https://vapersinpower.wordpress.com/2016/11/06/changing-how-your-council-sees-vaping/
Meanwhile, Simon Clark of FOREST has also written about this campaign on his blog http://taking-liberties.squarespace.com/ giving a different take.
Finally, a report claiming – implausibly in my view and that of several lawyers I have spoken to – that councils are using “illegal” vaping bans was featured in The Mirror on 5th November http://www.mirror.co.uk/news/uk-news/illegal-vaping-bans-mean-third-9204911
Helping or hindering?
Transparency is always good, and indeed it’s helpful for citizens to write to their elected representatives giving their views on issues like this. I also note that the transparency of councils in Freedom of Information requests is far greater than the transparency of some agencies commenting on this, and the story is being used by some to bash councils and public health. I think that will prove counter-productive and some councils at least will decide not to tread on what feels like an increasingly fractious and flammable path, even if they can see good at the end of it.
One DPH recently told me anything they say positive is met by some people on social media – who really don’t represent vapers but many folk wouldn’t know that – with tweets about them being evil and how public health and tobacco control want shooting. And then we wonder why public health folk are keeping their heads down in this debate.
The FTV report, while useful, doesn’t tell the whole story
There are several reasons why I don’t think the latest freedom to vape report tells the whole story. Doubtless some will disagree but let me list my reasons why:
- The PHE report which contains guidance for workplaces https://www.gov.uk/government/news/vaping-in-public-places-advice-for-employers-and-organisations was only produced in July 2016. The Freedom to Vape policy report was issued this past week. That’s just over three months between PHE guidance and the FOI report. The idea that most or even some councils will have considered, read and changed their policies on workplace vaping in that period is optimistic in the extreme, to put it mildly, given everything else they have on. The Freedom to Vape report can’t be taken as more than a snapshot of what the position was at the time of the FOI. For many councils this will be in a queue of issues to deal with, and breaking even will be top of the list.
- How can I say that? Because I know personally of a number of local authorities who are currently in discussion, or drafting revisions of policy and using, among other sources, the new PHE guidance and work from CIEH and others as a support. We are currently working on ours. I’ve commented on a few, and indeed many have commented on our draft policy.
- FOIs are an industry. Most local authorities employ a team to answer them. And I suspect (indeed having had informal discussions I know) that some councils have had their FOI team look at existing policy on the intranet and answer the FOI from freedom to vape. This won’t have captured that nuance. And it wont have captured those authorities where discussions have taken place but nothing is being written yet. The freedom to vape report, in that sense, misses out some work going on.
- You may say the FTV report will only miss a few local authorities doing positive policy development. But local authorities tend to be pack animals. They watch and learn what others do and follow those they think are best, especially in an uncertain area. And I know from speaking to people across the country that this is exactly what’s going on here. The few will shape the response of the many, in time. And three months is not enough for that to happen.
- It will take time, because there is no statutory duty on local authorities to do this, no policy obligation to do it either and the PHE guidance isn’t binding. Local authorities have discretion here and the key for people who are pro e-cigarettes is to help councils and support them use evidence and guidance sensibly and wisely. Frankly, the state of this debate will make some councils wish to exit the debate because it begins to look like a thankless low priority task when they’re about to fall off a financial cliff.
- Given everything else on the corporate agenda of councils (finances, social care, moving to business rate retention, devolution and so on) we need to find ways of making it easy for councils to do this. No amount of opprobrium and campaigning will make councils prioritise this if they think all they’re going to get is noise and hostility – even if it’s only from a few and the intention behind this report was about doing some good for peoples’ health.
- Several multinational tobacco manufactures have developed new, potentially risk reduced tobacco products which heat the tobacco but do not burn it. The Committee on Toxicology has been commissioned to evaluate the available evidence and at least some councils will probably want to await this report before making any definitive statement or revision of policy. Independent evidence on this latest development is extremely scarce but a study by the Dept of Public Health at the “La Sapienza” University of Rome suggests that it may be more appropriate to treat these products like e-cigarettes than to treat them like smoked tobacco. What is likely is that councils, given everything else on their agenda, will not want to revise their policies several times within a year.
But there is a wider issue here, surely? Why focus on just councils? What about NHS, civil service, other public sector and commercial and NGO/third sector employers? From what I can see and the discussions I’ve had with local employers, many of them don’t seem to have moved very far since July either. That’s because this shift will take time. The HR world is still in many places working out what it means in terms of employment law and local workplace policies and contractual entitlements.
Don’t just dismiss the FTV report
There will be some who dismiss the FTV report as a hostile publicity stunt, done in haste and poorly thought through. That would be a shame. And that’s a line I am neither going to believe nor support. The report was done by people passionate about the benefits of e cigarettes, I believe done for good intentions, and it does give us a snapshot of where councils are at and where the opportunity lies. The task now is supporting the HR community with getting on with this.
Time to re-orient how we debate with one another
I worry that there is a danger that some councils will see the report through the lens of some quite frankly hostile social media coverage (some from people who don’t like local government anyway) and decide they will wait and see what others do rather than trying to change things and get even more opprobrium. To that extent, there is a real possibility that some of the social media coverage around this may backfire.
There is a whole discussion about people saying public health and tobacco control are fit for nothing, well I’ll address that another time.
Some factual corrections to the recent debate
There’s also some factual things to correct here:
- Media reports that PHE advocates vaping rooms are not correct.
- PHE has avoided prescriptive guidance and has proposed 5 criteria to help form local policies. The fact they have avoided prescriptive guidance means employers have to rely on their own interpretation of the law and their local contracts. The idea that most or even many employers will manage this between July and end of October is a triumph of hope over reality.
- A conversation with a knowledgeable employment lawyer this morning told me that they and their legal colleagues have met with derision the media claim that local authorities are acting unlawfully on this. As someone who has worked in HR, I personally cannot see the legal claim for this. Employers remain able or not to consider whether or not to allow vaping.
- Establishing a right to vape in law will be very difficult, and would undoubtedly need legal precedent
The adoption of the PHE principles will take time. We’ve been working locally on our policy for several months. That wasn’t reflected in our FOI response to this. This is not cause for anger or depression. Nor is it cause for trading insults. We need to take the heat out of this debate.
There are lots of challenges lying ahead in developing and taking an evidence-based approach to welcoming e-cigarettes and similar devices. Setting to each others’ throats or “bigging up” an issue as a legal one when it isn’t – at least not in the way some folk report it – is not a recipe for elucidation.