The Environmental Protection (Single-use Vapes) (Wales) Regulations 2024 / Rheoliadau Diogelu’r Amgylchedd (Fêps Untro) (Cymru) 2024

Explanatory note

Reproduced verbatim from the instrument as published on legislation.gov.uk (Crown Copyright, Open Government Licence v3.0). The note is prepared by the responsible government department and is not part of the instrument itself.

These Regulations, which apply in Wales, prohibit the supply of single-use vapes. They are made under powers conferred by section 140 of the Environmental Protection Act 1990 (“ the 1990 Act ”) and section 62 of the Regulatory Enforcement and Sanctions Act 2008 (“ the 2008 Act ”). The 1990 Act allows the Welsh Ministers to prohibit the use, supply, and storage of specified articles to prevent them from causing pollution of the environment and harm to the health of animals. It also allows them to confer powers corresponding to those under section 108 of the Environment Act 1995 on authorised persons, including powers of entry, examination, and investigation, for taking photographs and samples, and the search and seizure of documents. The 2008 Act allows the Welsh Ministers, when making secondary legislation creating a criminal offence, to make any provision which could be made under Part 3 of the 2008 Act. This includes the imposition of the following civil sanctions: fixed monetary penalties, variable monetary penalties, compliance notices, non-compliance penalties, stop notices and enforcement undertakings.

Part 1 of these Regulations includes interpretation provisions, such as the definitions of “ supply ” (regulation 2) and of a “ single-use vape ” (regulation 3).

Part 2 of these Regulations sets out two offences. The first prohibits the supply, or offer for supply, of single-use vapes (regulation 4). Breach of these provisions is an offence. The second makes it an offence to obstruct enforcement officers from exercising their powers or to fail to comply with their requests (regulation 5). A defence of due diligence is provided for in regulation 6.

Part 3 is concerned with enforcement and investigatory powers. It introduces the “authorised purpose” for which an enforcement officer’s powers must be exercised, being to determine whether an offence has been committed or a requirement of a civil sanction has been contravened (regulation 7). The enforcement powers are contained in regulations 9 and 10 and include powers of entry, examination, and investigation, taking photographs and samples, and the search and seizure of documents. Regulation 11 provides for compensation associated with these powers. Regulation 12 provides a power for the Welsh Ministers to direct that certain single-use vapes be treated as waste.

Part 3 also introduces a civil sanctions regime to enable regulators to impose a range of civil sanctions in relation to the Part 2 offences (regulation 8 and the Schedule). These are: fixed monetary penalties, variable monetary penalties, compliance notices, stop notices, enforcement cost recovery notices and non-compliance penalties. Regulators may also accept enforcement undertakings under these provisions. The Regulations make provision for the procedure relating to these civil sanctions and the available appeal mechanisms. Failure to comply with a stop notice is an offence (paragraph 18 of the Schedule). All appeals relating to a civil sanction are to the First-tier Tribunal. Regulators are able to recover the costs of enforcement in the case of compliance notices and stop notices, and must issue guidance about their use of enforcement cost recovery notices (paragraph 29 of the Schedule).

Part 3 provides for the publication of information on enforcement action taken by regulators (regulation 13). Regulation 14 provides that guidance relating to the use of civil sanctions must be prepared and consulted on, and specifies information to be included in such guidance.

Part 4 contains supplementary provision for review of the Regulations (regulation 15).

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained from the Welsh Government, Cathays Park, Cardiff, CF10 3NQ.