Technophobia rules in Scottish court as vending machines lose final appeal

The BBC and the Scotsman are among those reporting that Sinclair Collis have lost their case in the appeal court on vending machines in Scotland, with a result that the law scrapping them will be implemented.

What is it with these people! There is a ready made solution to the issue of under-age sales, namely the radio controlled vending machine (see demonstration here). The idea is very simple: you show the bar staff or other supervisor of the machine ID, and the bar staff activates the machine. Activation works for a single sale. No tokens are issued, to be sold on to kids or left lying about. What could possibly go wrong? Ask the Scottish Government:

The Scottish government argued that vending machines could not involve age checks - unlike sales of alcohol or fireworks. (BBC report, emphasis added)

Well, that's fiddlesticks. Note 'could not': once again it suits the Scottish Government for the Scottish public to be worse than incompetent in exercising their responsibilities. Having worked in retail I can say there is no difference between checking ID for tobacco and checking it for alcohol. You just do it. It isn't difficult. The idea that it can't be done is medieval (rather like denying that secondary smoke can't be removed by applying the necessary technology).

It is worth noting that the Scottish Government celebrates the use of technology. Well, it says it does, and in certain contexts – such as 'telehealthcare' – it does. Let's hear it:

“The strategy will say that we will not be looking to deploy one solution for one problem. We will look to promote not just health but wellbeing. We will empower people to make services, [provide] information and [have] the wider community accessible to them and we have to deliver value,” said [the director of the Scottish Centre for Telehealth and Telecare]. 

Technology is an “enabler”, he explained.

But not when the wrong people want to use it, to show that a restrictive piece of legislation is not needed. Then it simply doesn't work.

Let's remember that in taking away vending machines we are robbing kids of the most expensive way to get their hands on tobacco that exists in the marketplace. Any kid that can outsmart a vending machine is not going to be put off by their removal as a potential source, especially when, within a few years, kids will have no memories of them. They'll just go elsewhere for tobacco, which is what most of them were doing all along anyway.

More scribblings from the ASH Scotland CEO

Sheila is keeping well busy these days, and in the pages of the Caledonian Mercury continues her crusade against the tobacco companies. Scotland is pictured as the heroic small country fighting against the evil tobacco that causes most of the country's premature deaths. She champions the Framework Convention on Tobacco Control, congratulating the Scottish government for distancing itself from the tobacco industry (much like its sister organisation has done, characterising everyone up to seven degrees of separation from tobacco companies as tobacco-smeared).

Tomorrow, she informs us, is the next court appearance for tobacco companies fighting the vending machine ban. Lies and trickery characterise these tobacco manufacturing demons who will not go gently into extinction when threatened by wee Eck and the mighty tobacco control arm of the Scottish government.

Enough. 'The tobacco industry is a public pariah,' she tells us, quoting Yougov. Has anyone done a survey about what percentage of the population believes tobacco control?

More on Wales: vending machines ban goes live

I'm a week late on this but it's still worth including because of the debate between Simon Clark and the ASH Wales representative, Carole Morgan-Jones. Caught out early on by the BBC interviewer, who asks Morgan-Jones how she knows the quantities of cigarettes sold illegally through vending machines that need to be banned because they cannot be monitored, she fails to substantiate other than by saying 'studies done by the UK Centre for Tobacco Control Studies', and essentially suggesting that the policy is formulated on the basis of anonymous surveys. She then all but claims that radio controlled or other vending machines would not stop children buying tobacco because bar staff are too busy to check ID properly (this line of argument emerges at the end when time has run out). This is nonsense: anyone dealing with age-restricted goods has to carry out age verification.  The only real modification that radio controlled vending machines would have required would have been ensuring age verification awareness for personnel in hotels, launderettes, cafeterias and other outlets where machines were accommodated.

Shopkeepers warned to expect influx of underage smokers

Following the introduction of the vending machine ban in England yesterday, Betty McBride of the British Heart Foundation, which campaigned for the ban, urged shopkeepers to be on the lookout for underage smokers.

Is it just me? or is it really illogical to believe that 11 per cent of underage smokers rely on vending machines for their tobacco? If it's not true that a significant proportion of child smokers use vending machines, why have they told researchers that they do? Is it because it seems to them that the alternative is to shop a dealer who is breaking the law by supplying them or shopping an illegal dealer who also supplies additional drugs? Getting a name for grassing up illegal dealers isn't a good survival tactic.

The fact that children can obtain tobacco from machines in test purchases is very far from being evidence that most determined young smokers will turn to these expensive machines as a regular source of supply. The children will get tobacco from rogue traders or illegal sellers on the street.

I feel that the notion that hordes of teenagers will queue up in shops with faked ID just because there's no longer a tobacco vending machine in the Bull & Bush is far-fetched and reflects a level of official denial about the scale of unofficial/illegal sales of tobacco in Scotland.

North of the border restrictions are tightening too. Retailers of tobacco in Scotland are required to register, but as little as three days ago less than half the retailers had done so. On the alcohol side, 'buy one get one free' and similar offers are now illegal in shops – but since supermarkets have already simply lowered the unit price of wines and crates of beer it remains to be seen how quickly further restrictions will follow.

Vending machine bans live today

The BBC reports the beginning of the vending machine in England today. This measure is designed to protect 'under-age children' from the temptations of tobacco, by preventing them from buying a product that contains fewer cigarettes and is more expensive than tobacco from any other source.

There is no need to destroy an industry on the pretext of preventing children from accessing tobacco. Vending machine companies have been developing solutions to age verification problems. If, Michael Matheson then MSP (now Minister for Public Health) claimed  when the Bill was passed, there is no evidence proving that kids wouldn't find a way to use a radio-controlled machine activated upon age verification, there is likewise no guarantee that future generations of kids will even give vending machines a thought once they are no longer there.   If they want to smoke, they will find a way.

Imperial Tobacco threatens appeal to Supreme Court

The story is here. The writer speculates that an appeal to the Supreme Court could cause trouble, if the Supreme Court ruled against the Scottish Government.

However the Supreme Court has already rejected an appeal from Sinclair Collis (vending machine company owned by Imperial Tobacco) on the legislation that will ban vending machines this year.

Much as I would like to see the courts overturning the legislation, I fear that they have already been lent on by legislators, and they are not providing the impartial service that they should be providing.

Legislators are not minded to heed appeals from what they perceive as tobacco interests – even though the results of a recently published European consultation on tobacco regulations revealed that ordinary citizens argued against the display ban in the same terms as the tobacco industry (para 6.6.4).

Such prejudice should not even register with the courts.

Supreme Court refuses to hear appeal on vending machine ban

Isn't it nice that the Supreme Court will avoid wasting court time by refusing to hear a manifestly unjust case, thus avoiding the clear obligation to vote against the government?

There is clearly an alternative option to a vending machine ban: mandating effective age-verification, and using equipment that allows only one sale each time a machine is activated following age verification. Yet the Supreme Court will not allow this case to be made.

I suspect it may be for the same kind of reason that the Scottish Parliament refused to allow a trial of radio-controlled vending machines – that it would put them behind in the tobacco control league tables. Juvenile or what?

Lord suspends judgement in dismissing tobacco vending machine appeal

Suspends judgement? well that's remarkably what it looks like. Lord Neuberger's words have been widely quoted:

virtually any measure which a government takes to restrict the availability of tobacco products, especially to young people, is almost self-evidently one with which no court should interfere.

Although stating that DoH statistics were 'little more than guesses', His Lordship reckons that the government has no case to answer simply by virtue of being government promoting health. Regardless of the number of jobs at stake, there is no point in anyone even trying to bring a case against the government because ... yes ...

virtually any measure which a government takes to restrict the availability of tobacco products, especially to young people, is almost self-evidently one with which no court should interfere.

 Some of the public commenting in both the Daily Mail and the Sun (and no doubt elsewhere) struggle to understand why age-restriction technology (for instance radio-controlled vending machines) may not be used. It may not be 100 per cent fool proof (although it probably comes quite close) but neither is banning vending machines. The children and young adults of the future won't even miss them – they are too expensive even for adults to use as a regular source of supply.

It seems that all you have to do is come up with an idea to improve public health, and bring children into the discussion, and the courts won't even bother listening to any of your adversaries. Self-evidently. But when jobs are at stake, surely guesswork isn't enough.

I thought the whole point of having three arms of government (the separation of powers) was to protect the integrity of government by ensuring that each arm did its job properly.

Imperial Tobacco intends to appeal to the Supreme Court.

Scottish government delays tobacco vending machine ban pending legal action

On Thursday, the Scottish Government announced that the vending machine ban, due to be implemented on 1 October, has been delayed, as legal proceedings by Sinclair Collis are ongoing. Sad for Michael Matheson to be making such an announcement in his first tobacco-related press release as Public Health Minister – but he is confident that the Scottish Government's case will be victorious, and such setbacks are to be expected in political life.

I can't see that the Scottish Government has a leg to stand on in trying to persuade the courts that vending machines, the most expensive retail outlet for tobacco, need be banned to ensure that children don't use them to access tobacco. The fact that children obtained them in test purchases does not prove that most children would choose to spend over the odds on getting tobacco out of vending machines regularly.

In any case Sinclair Collis, the Imperial Tobacco vending machine subsidiary, has developed  radio controlled vending machines described here (I can't get the video to work, can anyone else). The idea is that staff activate machines only following age verification, and activation lasts only for a single purchase. No purchase can take place without activation following age verification if needed.

A final stage amendment requesting ministers to consider the use of these machines was voted against in January last year, partly for fear that Scotland would fall behind in the fight against tobacco (start at col 23116). The idea that someone had a technological answer to the bare possibility of children obtaining tobacco from vending machines was regarded as a dangerous distraction from the serious business of denormalising tobacco.

The tobacco display ban, which requires retailers to conceal packs of tobacco on sale rather than display them, has also been delayed by a legal challenge.

Legal challenge to vending machine ban in Scotland fails

The report is here.

I can't say what part of the European Convention on Human Rights is supposedly contravened by a ban on tobacco vending machines. I would just say that such a ban is unnecessary, and taking the most highly priced cigarettes out of the market in order to deter kids from using them is a waste of time as well as damaging to industry.

Radio-controlled vending machines have been developed specifically to deal with age verification. An amendment by Rhona Brankin MSP (Labour) asking for time to trial these machines was rejected out of hand by all three major parties in the final stage debate, because it 'would not work' (Ms Brankin attempted to withdraw the amemdment but it still went to the vote). And because it would involve existing machines remaining in service while the trials proceeded.

But probably most of all because in the words of Shona Robison, then Minister for Public Health and Sport: .

I am sure that no one in the Parliament would want Scotland to lag behind England on a tobacco control measure. [Official Report, col 23102]

 Reassuring?