Environmental Protection PART 1 Introduction Citation, commencement and extent 1 1 These Regulations may be cited as the Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024 and come into force on 1 June 2025. 2 These Regulations extend to Scotland only. Interpretation 2 In these Regulations— “ authorised purpose ” means the purpose of determining whether an offence under regulation 4 has been or is being committed, “ container ” means a cartridge, pod, tank, capsule or other any other receptacle designed to hold a vaping substance and be used with a vape, “ enforcement officer ” means a person authorised under regulation 8, “ local authority ” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 , “ single-use vape ” has the meaning in regulation 3, “ supply ” means supply, whether by sale or not, in the course of a business, “ vape ” means a device which— vaporises substances, other than tobacco, for the purpose of inhalation through a mouthpiece (whether or not it also vaporises tobacco), and is not a medical device within the meaning of regulation 2 of the Medical Devices Regulations 2002 or a medicinal product within the meaning of regulation 2 of the Human Medicines Regulations 2012 , “ vaping substance ” means a substance, other than tobacco, that is intended to be vaporised with a vape, “ vaporises ” includes aerosolises and “ vaporised ” is to be construed accordingly. Meaning of single-use vape 3 1 For the purposes of these Regulations, a single-use vape is a vape which is not designed or intended to be re-used (a “single-use vape”), and includes any vape which is— a not refillable, b not rechargeable, or c not refillable and not rechargeable. 2 For the purposes of this regulation, a vape is not refillable unless it is designed to include— a a single-use container which is separately available and can be replaced by an individual user in the normal course of use, or b a container which can be refilled by an individual user in the normal course of use. 3 For the purposes of this regulation, a vape is not rechargeable if it is designed to contain— a a battery which cannot be recharged, or b a coil which is not separately available and cannot be replaced by an individual user in the normal course of use, including any coil which is contained in a single-use cartridge or pod which is not separately available and cannot be replaced by an individual user in the normal course of use. 4 For the purposes of this regulation, “ separately available ” means available for purchase by an individual user. PART 2 Offences Offence: supply of single-use vapes 4 1 A person who supplies, offers to supply, or has in their possession for supply, a single-use vape, commits an offence. 2 A person who commits an offence under paragraph (1) is liable— a on summary conviction to a fine not exceeding level 5 on the standard scale, b on conviction on indictment, to a term of imprisonment not exceeding 2 years, or a fine, or both. Offence: failure to comply with an enforcement requirement 5 1 A person who fails without reasonable excuse to comply with any requirement imposed in the exercise of an enforcement officer’s powers under regulation 9(1)(c)(iii), (i) or (k) commits an offence. 2 A person who commits an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. Offences by bodies corporate 6 1 Where— a an offence under these Regulations has been committed by a body corporate or a Scottish partnership or other unincorporated association, and b it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of— i a relevant individual, or ii an individual purporting to act in the capacity of a relevant individual, the individual as well as the body corporate, Scottish partnership or unincorporated association commits an offence and is liable to be proceeded against and punished accordingly. 2 In paragraph (1), “ relevant individual ” means— a in relation to a body corporate— i a director, manager, secretary or other similar officer of the body, ii where the affairs of the body are managed by its members, a member, b in relation to a Scottish partnership, a partner, c in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association. Defence of due diligence 7 1 Where a person is charged with an offence under these Regulations, it is a defence for that person to show that the person took all reasonable precautions and exercised all due diligence to prevent the offence being committed. 2 Where the defence provided by paragraph (1) involves an allegation that the commission of the offence was due to the act or omission of another person, the person charged must not, without leave of the court, be entitled to rely on the defence unless, within the period of 7 days before the hearing, the person charged has served on the prosecutor a notice giving such information identifying or assisting in the identification of the other person as was then in the possession of the person charged. PART 3 Enforcement and Investigatory Powers Enforcement 8 1 A local authority may authorise any person to exercise in its area, for an authorised purpose and in accordance with the terms of the authorisation, any of the powers specified in regulation 9, if that person appears suitable to exercise them. 2 An authorisation under paragraph (1) must be in writing. Powers of entry, investigation and examination etc. 9 1 The powers which an enforcement officer may be authorised to exercise are— a to enter at any reasonable time any premises (other than premises used wholly or mainly as a dwelling) which the enforcement officer has reason to believe it is necessary to enter for an authorised purpose, b when entering any premises under sub-paragraph (a)— i to be accompanied by another enforcement officer, and if the enforcement officer has reasonable cause to apprehend any serious obstruction in the execution of that person’s duty, a constable, and ii to bring any equipment or materials required for any authorised purpose for which the power of entry is being exercised, c on entering any premises under sub-paragraph (a)— i to make such examination and investigation as may in any circumstances be necessary, ii to take such measurements and photographs and make such recordings as the enforcement officer considers necessary for the purpose of any examination or investigation, and iii to require any person to produce, or where the information is recorded in computerised form, to furnish extracts from, any documents which it is necessary for the enforcement officer to see for the purposes of any such examination or investigation and to inspect and take copies of the documents, d as regards any premises which an enforcement officer has power to enter under sub-paragraph (a), to direct that those premises or any part of them, or anything in them, be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of examination or investigation under sub-paragraph (c), e to take any samples, or cause samples to be taken, of any vape or component of a vape, which appears to that enforcement officer to be a single-use vape or component of single-use vape found in or on any premises which an enforcement officer has power to enter under sub-paragraph (a), and to cause any such samples to be analysed or tested, f in the case of any vape or component of a vape which appears to that enforcement officer to be a single-use vape or component of a single-use vape found in any premises which an enforcement officer has power to enter, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary), g in the case of any vape or component of a vape which appears to that enforcement officer to be a single-use vape or component of a single-use vape found in or on any premises which an enforcement officer has power to enter under sub-paragraph (a) to take possession of it and to retain it for so long as is necessary for all or any of the following purposes— i to examine it, and subject it to any process or test, or cause it to be examined, and subjected to any process or test, ii to ensure that it is not tampered with before the examination is completed, iii to ensure that it is available for use as evidence in any proceedings for an offence under these Regulations, iv to ensure that it is retained for the purposes of compliance with any direction given by the Scottish Ministers under regulation 14, h as regards any premises which an enforcement officer has power to enter under sub-paragraph (a), to search the premises and seize and remove any documents found in or on the premises which the enforcement officer has reasonable cause to believe may be required as evidence for the purposes of proceedings relating to an offence under regulation 4 which the enforcement officer reasonably believes is being or has been committed, i to require any person to afford the enforcement officer such facilities and assistance with respect to any matters or things within the person’s control or in relation to which that person has responsibilities as are necessary to enable the enforcement officer to exercise any of the powers conferred on the enforcement officers by this regulation, j as regards any premises which an enforcement officer has power to enter under sub-paragraph (a), to make a purchase of a single-use vape or enter into an agreement to secure the provision of a single-use vape, without first giving notice, or obtaining a warrant, k to require any person whom the enforcement officer has reasonable cause to believe to be able to give any information relevant to an examination or investigation under sub-paragraph (c) above, to provide the person’s name, address and date of birth. 2 An enforcement officer may not exercise the power in paragraph (1)(h) except under the authority of a warrant issued under regulation 10. 3 Any entry to premises by virtue of paragraph (1)(a) may only be effected under the authority of a warrant issued under regulation 10 if— a entry has been refused and the enforcement officer apprehends on reasonable grounds that the use of force may be necessary to effect entry, b the enforcement officer apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry, or c the premises are unoccupied. 4 Where an enforcement officer removes a document under the power in sub-paragraph (1)(h), that contains information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings— a the information may not be used in evidence for the purpose of proceedings in relation to an offence under these regulations, and b the document must be returned to the premises from which it was removed, or to the person who had possession or control of it immediately before it was removed, as soon as reasonably practicable after the information is identified as information to which a claim of confidentiality could be maintained (but, the person may retain, or take copies of any other information contained in the document). 5 Nothing in paragraph (1)(h) compels the production by a person of any document of which that person would on grounds of legal professional privilege be entitled to withhold production on an order for the production of documents in an action in the Court of Session. 6 An enforcement officer seeking to exercise a power under paragraph (1) must produce evidence of identity and authority if requested by a person who is, or appears to be— a a supplier, or employee of a supplier of single-use vapes, b the owner or occupier of any premises in which the enforcement officer seeks to exercise the power concerned. 7 In this regulation, “ document ” includes any thing in which information of any description is recorded (by any means) and any part of such a thing. Warrants 10 1 A sheriff, summary sheriff or justice of the peace may by warrant authorise an enforcement officer to enter premises in accordance with the warrant and, if need by, by force, 2 A warrant may be granted under paragraph (1) if the sheriff, summary sheriff or justice of the peace is satisfied on sworn information in writing that— a there are reasonable grounds for entry into the premises for the purpose for which entry is required, and b one or more of the conditions in paragraph (3) are met. 3 The conditions mentioned in paragraph (1)(b) above are that— a admission to the premises has been refused, b a refusal of admission to the premises is reasonably apprehended, c the premises are unoccupied, d the occupier is temporarily absent from the premises and the case is one of urgency, or e an application for admission to the premises would defeat the object of the proposed entry. 4 A sheriff, summary sheriff or justice of the peace may by warrant authorise the enforcement officer to exercise the power in regulation 9(1)(h) in relation to any documents in accordance with the warrant and, if need by, by force. 5 A warrant may be granted under paragraph (4) if the sheriff, summary sheriff or justice of the peace is satisfied, on sworn information in writing, that there are reasonable grounds for the exercise in relation to any documents of the power in regulation 9(1)(h). 6 A warrant issued under this regulation continues in force until the purpose for which the entry is required has been satisfied. Power to give a fixed penalty notice 11 1 If an enforcement officer has reason to believe that a person is committing or has committed an offence under regulation 4(1) of these Regulations, the enforcement officer may give that person a fixed penalty notice. 2 A fixed penalty notice for an offence under regulation 4(1) of these Regulations may not be given more than 14 days after the day on which the offence took place. 3 Where a person is given a fixed penalty notice in respect of an offence under regulation 4(1) of these Regulations— a no proceedings may be instituted for that offence before the end of the period of 28 days beginning with the date of the notice, and b the person may not be convicted of the offence if— i the discounted amount is paid before the end of the period of 14 days beginning with the date of the notice, or ii the fixed penalty is paid before the end of the period of 28 days beginning with the date of the notice. 4 A fixed penalty payable in pursuance of a fixed penalty notice under this regulation is to be paid to the local authority in whose area the offence was committed. 5 In any proceedings, a certificate which— a purports to be signed by the person having responsibility for the financial affairs of the local authority to which the fixed penalty is to be paid, and b states that payment of a fixed penalty or discounted amount was or was not received by the date specified in the certificate, is evidence of the facts stated. 6 An enforcement officer may require a person to give their name, address and date of birth if the enforcement officer proposes to give the person a fixed penalty notice. 7 A person commits an offence if the person— a fails to give a name, address or date of birth when required to so under paragraph (6), or b gives a false of inaccurate name, address or date of birth in response to a requirement under that paragraph. 8 A person who commits an offence under paragraph (7) is liable on summary conviction to a fine not exceeding level 3 on the standard scale. 9 In this Part, “ fixed penalty notice ” means a notice offering a person the opportunity of discharging any liability to conviction for an offence under regulation 4(1) of these Regulations by payment of a fixed penalty. Contents of a fixed penalty notice 12 A fixed penalty notice must— a set out the particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence, b set out the period during which, by virtue of regulation 11(3)(a), proceedings will not be instituted for the offence, c set out the amount of the fixed penalty, including any discounted amount that applies where payment is made before the end of the period of 14 days beginning with the date of the notice, d set out the period within which the fixed penalty must be paid, including the period within which the discounted amount must be paid in order for the discount to apply, e explain that the fixed penalty notice contains an offer to discharge liability for the offence by payment of a fixed penalty and that the person is not required to accept that offer, f explain that should the person choose not to accept the offer to discharge liability for the offence by payment of a fixed penalty, that person may be prosecuted for that offence, g state the person to whom the fixed penalty may be paid, and the address at which the fixed penalty may be paid. Fixed penalty amounts and payment periods 13 1 Subject to paragraph (2), the fixed penalty amount and discounted amount for an offence under regulation 4(1) are— a £200 (fixed penalty), and b £150 (discounted amount). 2 Where a person is issued with a fixed penalty notice and that person has been the subject of previous enforcement action within the preceding three years, the fixed penalty amounts and discounted amounts are as set out in Table 1. 3 Where a person has accepted the offer of a fixed penalty, the fixed penalty must be paid— a in order for the discounted amount to apply, before the end of the period of 14 days beginning with the date of the notice, b in any other case, before the end of the period of 28 days beginning with the date of the notice. 4 In this regulation, “ enforcement action ” means the giving of a fixed penalty notice or the conviction for an offence under regulation 4(1). Table 1 Number of previous enforcement actions Amount of fixed penalty £ Discounted amount £ One 400 350 Two 600 550 Three 800 750 Disposal of single-use vapes 14 1 The Scottish Ministers may direct that single-use vapes of a description specified in paragraph (2) are to be treated as waste and disposed of or otherwise treated as the Scottish Ministers consider necessary. 2 The single-use vapes referred to in paragraph (1) are any single-use vapes which have been supplied, offered for supply or held in a person’s possession for supply in contravention of regulation 4(1), and include any single-use vapes in respect of which an enforcement officer has issued a fixed penalty notice under regulation 11 and the fixed penalty has subsequently been paid in accordance with regulation 13(3). 3 A direction under paragraph (1)— a may be given to any one or more local authorities in connection with any enforcement action taken under these Regulations, b may be applicable in respect of single-use vapes retained by any enforcement officer, c must not be executed by the local authority concerned (or by a person acting on the local authority’s behalf until any right of appeal in relation to the offence is exhausted. GILLIAN MARTIN A member of the Scottish Government St Andrew’s House, Edinburgh 1st October 2024