National
Assembly for Wales / Cynulliad Cenedlaethol
Cymru
Health
and Social Care Committee /
Y Pwyllgor Iechyd a Gofal Cymdeithasol
Public Health (Wales) Bill/ Bil Iechyd y Cyhoedd (Cymru)
Evidence from Rhondda Cynon Taf County Borough Council – PHB 93 / Tystiolaeth gan Gyngor Bwrdeistref Sirol Rhondda Cynon Taf – PHB 93
HEALTH AND SOCIAL CARE COMMITTEE CONSULTATION ON PRINCIPLES OF THE PUBLIC HEALTH (WALES) BILL
Submission of Evidence by Rhondda Cynon Taf County Borough Council
Part 2: Tobacco and Nicotine Products Part 2 of the Bill includes provisions relating to tobacco and nicotine products, these include placing restrictions to bring the use of nicotine inhaling devices (NIDs) such as electronic cigarettes (e-cigarettes) in line with existing restrictions on smoking; creating a national register of retailers of tobacco and nicotine products; and prohibiting the handing over of tobacco or nicotine products to a person under the age of 18.
Do you agree that the use of e-cigarettes should be banned in enclosed public and work places in Wales, as is currently the case for smoking tobacco?
Yes.
The use of e-cigarettes, in particular those that have the appearance of traditional cigarettes, undermines enforcement of smoke-free legislation, not only by local authorities but also those that manage smoke-free places. Many business owners have banned them for that reason.
The Directors of Public Protection Wales (DPPW) published its views on the availability and use of e-cigarettes in 2013 (DPPW, 2013)which included several examples* where the enforcement of the ban on smoking in enclosed public places had been undermined by claims of the use of e-cigarettes.We are aware that local authorities have had legal actions fail because offenders claimed they were using e-cigarettes.
Examples: Cardiff County Council instigated a prosecution against a taxi driver for smoking in his vehicle. The defendant pleaded not guilty on the basis that he was smoking an e-cigarette and not a “real” cigarette. The matter proceeded to Court where the defendant was found not guilty despite the alleged offence being witnessed by an Enforcement Officer.
Powys County Council has also experienced difficulties with enforcement, having lost a court case against a taxi driver who as part of his defence in Court suggested he may have been using an e-cigarette. The Court found the defendant not guilty despite the investigating officer’s witness statement.
Similar enforcement difficulties have been experienced by Caerphilly CBC, Wrexham CBC and Swansea CBC where taxi drivers have been witnessed smoking in their vehicles but Enforcement Officers have been unable to prove whether it was a tobacco product or an e-cigarette. These cases demonstrate that where an individual is witnessed contravening the ban on smoking in a wholly or substantially enclosed public place they can simply claim that they were smoking an e-cigarette and it is extremely difficult for enforcing authorities to prove otherwise, thereby compromising the enforcement of the ban.
A key issue here is that the ban on smoking in public places has been very successful and is almost entirely self-policing by the public. E-cigarettes pose a real threat to that self-policing.
E-cigarettes also undermine the ability of managers of premises to enforce smoke free places, leading to many businesses banning them. Our officers that visit business premises on a regular basis, often hear concerns from owners and managers about confrontation when dealing with people “vaping”. Some vapers argue “it’s not against the law”.
We believe that the use of e-cigarettes in public places can help “normalise” smoking, and can introduce others into the habit of smoking. See later.
There is uncertainty over the potential adverse health implications associated with e-cigarettes and despite recent studies suggesting some benefit to those quitting smoking the efficacy of e-cigarettes as an aid to smoking cessation is not entirely clear. It is therefore appropriate to take a precautionary approach to the risks associated with e-cigarettes. Currently people in Wales can breathe clean air in offices, shops, pubs and other public places and work environments. We don’t want to see a backwards step towards potentially polluted air.
Further evidence in support of the above can be found in the ‘State Health Officer’s Report on E-Cigarettes’ (January 2015) (California Department of Public Health).
http://www.cdph.ca.gov/programs/tobacco/Documents/Media/State%20Health-e-cig%20report.pdf
The executive summary says:
While there is still much to be learned about the ingredients and the long-term health impacts of e-cigarettes, this report provides Californians with information on e-cigarette use, public health concerns related to e-cigarettes, and steps that can be taken to address the growing use of these products. The following are key highlights from the report:
E-Cigarette Use
• In 2014, teen use of e-cigarettes surpassed the use of traditional cigarettes for the first time, with more than twice as many 8th and 10th graders reporting using e-cigarettes than traditional cigarettes. Among 12th graders, 17 percent reported currently using e-cigarettes vs. 14 percent using traditional cigarettes.
• In California, adults using e-cigarettes in the past 30 days doubled from 1.8 percent in 2012 to 3.5 percent in 2013. For younger adults (18 to 29 years old), e-cigarette use tripled in only one year from 2.3 percent to 7.6 percent.
• Young adults are three times more likely to use e-cigarettes than those 30 and older.
• Nearly 20 percent of young adult e-cigarette users in California have never smoked traditional cigarettes.
Health Effects of E-Cigarettes
• E-cigarettes contain nicotine, a highly addictive neurotoxin.
• Exposure to nicotine during adolescence can harm brain development and predispose youth to future tobacco use.
• E-cigarettes do not emit water vapor, but a concoction of chemicals toxic to human cells in the form of an aerosol. The chemicals in the aerosol travel through the circulatory system to the brain and all organs.
• Mainstream and second hand e-cigarette aerosol has been found to contain at least ten chemicals that are on California’s Proposition 65 list of chemicals known to cause cancer, birth defects, or other reproductive harm.
Heightened Concern for Youth
• The variety of fruit and candy flavoured e-cigarettes entice small children who may accidently ingest them. Even a fraction of e-liquid may be lethal to a small child.
• E-cigarette cartridges often leak and are not equipped with child-resistant caps, creating a potential source of poisoning through ingestion and skin or eye contact.
• Calls to poison control centres in California and the rest of the U.S. have risen significantly for both adults and children accidently exposed to e-liquids.
• In California, the number of calls to the poison control centre involving e-cigarette exposures in children five and under tripled in one year.
Harm Reduction Claims and Myths
• There is no scientific evidence that e-cigarettes help smokers successfully quit traditional cigarettes.
• E-cigarette users are no more likely to quit than regular smokers, with one study finding 89 percent of e-cigarette users still using them one year later. Another study found that e-cigarette users are a third less likely to quit cigarettes.
Unrestricted Marketing
• In three years, the amount of money spent on advertising e-cigarettes increased more than 1,200 percent.
• E-cigarette advertisements (ads) are on television (TV) and radio where tobacco ads were banned more than 40 years ago. Most of the methods being used today by e-cigarette companies were used long ago by tobacco companies to market traditional cigarettes to kids.
• Many ads state that e-cigarettes are a way to get around smoking bans, which undermines smoke free social norms. Various tactics and claims are also used to imply that these products are safe.
• The fact that e-cigarettes contain nicotine, which is highly addictive, is not typically included in e-cigarette advertising.
In Conclusion
California has been a leader in tobacco use prevention and cessation for over 25 years, with one of the lowest youth smoking rates in the nation. The promotion and increasing use of e-cigarettes threaten California’s progress. These data suggest that a new generation of young people will become addicted to nicotine, accidental poisonings of children will continue, and involuntary exposure to second-hand aerosol emissions will impact the public’s health if e-cigarette marketing, sales and use continue without restriction. Additionally, without action, it is likely that California’s more than two decades of progress to prevent and reduce traditional tobacco use will erode as e-cigarettes re-normalise smoking behaviour.
What are your views on extending restrictions on smoking and e-cigarettes to some non-enclosed spaces (examples might include hospital grounds and children’s playgrounds)?
There is a need for Fixed Penalty Notice powers which should be consistent with existing provisions. In drafting such provisions there is a need to consider that law currently places a responsibility on the person in control of premises to prevent smoking (e.g. hospital grounds) and that local authorities’ usual enforcement approach is against the “person in control of premises” for permitting smoking. (Under the Health Act 2006 “It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking.”)
If current restrictions are extended, then it is essential that local authorities receive additional funding to support this work. Receipts from enforcement should be returned to local authorities to further support enforcement and education work in this area.
The additional work likely to arise as a result of an extension in the ban to include e-cigarettes and also to prohibit smoking and the use of e-cigarettes in other non-enclosed places is difficult to predict but may be significant.
We appreciate that the ‘smoking ban’ has, to date, been largely self-policing.
This will have been assisted by the fact that health risks associated with smoking and in turn the inhalation of second hand tobacco smoke are well known and understood. As a result smokers (and the public in general) will appreciate the purpose of the ban and support compliance expectations.
While there are reasoned arguments for extending the ban to include e-cigarettes and to cover certain non-enclosed places, it is foreseeable that smokers will be less understanding of, and compliant with respect to, restrictions on their use of e-cigarettes in the absence of ‘proven’ health concerns and where they feel that their use of such devices is key to them quitting smoking. Similarly, there is likely to be less public concern for the use of e-cigarettes, for the same reasons, and accordingly less social pressure on users not to use them in contravention of any ban.
This distinction may create some/significant resistance towards compliance, which would in turn necessitate a significant increase in resources to ‘police’, compared to the current smoking ban.
This should be taken into consideration in resourcing this work.
Do you believe the provisions in the Bill will achieve a balance between the potential benefits to smokers wishing to quit with any potential disbenefits related to the use of e-cigarettes?
Yes.
Our key concerns are the potential for e-cigarettes to undermine the enforcement of smoke free legislation; intentionally or inadvertently promote or normalise smoking; and the potential impact upon smoke free environments.
We are concerned that there is a real potential for e-cigarettes to intentionally or inadvertently promote smoking amongst those who currently do not smoke. In particular we feel there is a need to make every effort to deter young people from becoming smokers.
Do you have any views on whether the use of e-cigarettes renormalises smoking behaviours in smoke-free areas, and whether, given their appearance in replicating cigarettes, inadvertently promote smoking?
Yes.
We take the view that anything that has the appearance of smoking helps “normalise” smoking and therefore promotes smoking behaviour and culture. We also question whether the term “inadvertently” is appropriate. For example, we are not aware that there is any technical reason why e cigarettes need to glow or emit a vapour.
We are also concerned by the nature of e-cigarette advertising; we note the reappearance of 1950’s style marketing of tobacco products.
Workplaces have worked hard to implement the smoke free premises legislation and the use of e-cigarettes undermines this work.
We are concerned that e-cigarettes encourage young people to think that smoking is acceptable and therefore has the potential to act as a gateway to both e-cigarettes and tobacco based products.
Data relating to smoking behaviour in Wales leads us to conclude that we cannot afford to step back from promoting smoke free behaviour and the health and societal benefits associated with that approach.
Do you have any views on whether e-cigarettes are particularly appealing to young people and could lead to a greater uptake of their use among this age group, and which may ultimately lead to smoking tobacco products?
Yes we feel they are. We feel every effort must be made to prevent young people developing nicotine addiction or smoking behaviours.
Worryingly, e-cigarettes have been witnessed being displayed for sale with sweets, at child height, at the checkout in large stores.
Some e-cigarettes utilise scented or flavoured refills that may be attractive to younger users, which is a particular concern if combined with the highly addictive properties of nicotine. Some of these are branded in ways that may be particularly attractive to younger users, such as “Gummy Bear, Cherry cola and Bubble Gum”.
Some products are being packaged and marketed in a way that is closely associated with that of conventional cigarettes. For example, we are not aware that there is any technical reason why e-cigarettes need to glow or emit a vapour. We are also concerned by the nature of e-cigarette advertising; e.g. consistent with the 1950’s style marketing of tobacco products.
Many of these factors reinforce the association with conventional tobacco cigarettes and may normalise smoking related behaviour.
Do you have any views on whether restricting the use of e-cigarettes in current smoke-free areas will aid managers of premises to enforce the current non-smoking regime?
Yes. A number of licensed premises have independently introduced bans on the use of e-cigarettes within their premises in recognition of the difficulty they cause their staff in applying the smoking ban within their premises.
Our colleagues that visit business premises on a regular basis, often hear concerns from owners and managers about confrontation when dealing with people “vaping”. Some vapers argue “it’s not against the law”.
The proposed legislation in smoke-free places should apply equally to tobacco based products and all forms of e-cigarettes.
Do you have any views on the level of fines to be imposed on a person guilty of offences listed under this Part?
The power to issue Fixed Penalty Notices and other enforcement provisions need to be consistent with other smoking legislation, and the fines need to be set at such a level as to be a deterrent to (re)offending. Receipts from enforcement/Fixed Penalty Notices should be returned to local authorities to further support enforcement and education work in this area.
Do you agree with the proposal to establish a national register of retailers of tobacco and nicotine products?
Yes. We support the proposal.
Do you believe the establishment of a register will help protect under 18s from accessing tobacco and nicotine products?
The introduction of a register will provide an additional control on the availability of tobacco; a register would contain detailed information on those people and premises from which tobacco can be sold legitimately. Furthermore it would restrict access to the trade to those people and premises where tobacco should not be sold. It will be easier for enforcement officers to identify those premises where tobacco is permitted to be sold, which will in turn assist with the enforcement of underage sales and the display ban.
The success of such a measure would be dependent on the legislation including provisions to control access to the register such as a “fit & proper persons” or “suitable persons” test. This is explored further in response to subsequent questions.
If a register is to be established it needs to cover all those that manufacture, distribute and sell tobacco products. We feel that having a register only for the end retailers is not comprehensive and will not cover other parts of the tobacco chain that feed the habit including those under age. An offence should be created where tobacco products can only be sold, distributed, etc to those registered.
We note that section 29(5) provides that ‘A registered person who fails, without reasonable excuse, to comply with section 25 (duty to notify certain changes) commits an offence’. We are concerned by the use of the phrase ‘reasonable excuse’:
a) Firstly, as it is out of step with the more robust due diligence offence common to most current consumer protection legislation, i.e. the two limbed all reasonable precautions and all due diligence defence. There is concern that with section 29(5) as currently worded, individuals failing to notify changes to the register will be able to evade enforcement action. There will be no definition of what is reasonable and so these explanations would need to be tested in court with associated wasting of resources.
Use of the well established two limbed due diligence system would enable enforcement officers to assess the adequacy of an individual’s defence based on tried and tested case law, well before a case has to enter the court system
b) Secondly, the very use of the word ‘excuse’ in section 29(5) sends out quite the wrong message to the trade, and there is a danger that the current wording will encourage individuals simply to ‘come up with an excuse’ in the expectation that this will be acceptable.
Do you believe a strengthened Restricted Premises Order regime, with a national register, will aid local authorities in enforcing tobacco and nicotine offences?
Yes. The proposed link to restricted sales orders (RSOs) and restricted premises orders (RPOs) under the Children & Young Persons Act are welcome. However, we see it as essential that the range of offences triggering an RPO is extended to include all tobacco related breaches, for example the supply of illegal (counterfeit and non-duty paid) tobacco, tobacco labelling offences, non-compliance with the tobacco display ban; and not just underage sales. It is hoped that these matters will be addressed through the proposed power for Welsh Ministers to make regulations under section 12D of the Children and Young Persons Act and the range of offences triggering an RPO extended accordingly.
However, our experience of “Registers” introduced under other legal provisions suggest that their efficacy can be limited if they are not also accompanied by robust enforcement powers. Some registers are merely administrative or informative.
Local authority enforcement officers will need effective powers to ensure that the register has the desired effect. These need to include the power to restrict access to the register and to remove persons from the register where there has been a relevant infringement of the law, including offences concerning underage sales. We feel that there should be a provision to consider suitability of a retailer - whether the retailer is a “fit & proper” person. For example, whether a retailer been convicted for the sale of alcohol, solvents or other age restricted products to minors. The section 24 provision that an application to register will not be granted if an RPO or RSO is already in place goes some way towards this, but of course does not take account of the selling to minors of other age restricted products.
We welcome the section 23(2)(g) clarification that in addition to sellers of tobacco and nicotine products with a High Street presence, those supplying via online, telephone and mail order channels will be required to indicate this on the register. However, it is unclear from the wording of section 22(1) whether the requirement to register applies only to those based in Wales rather than those outside Wales supplying to customers in Wales, i.e. ‘The registration authority must maintain a register of persons carrying on a tobacco or nicotine business at premises in Wales’.
We are disappointed with the section 23(3) definition of a “tobacco or nicotine business” as being a business involving the sale by retail of tobacco or cigarette papers or nicotine products. Limiting the scope of the register to retail would be a lost opportunity to regulate throughout the supply chain. The illicit supply and sale of tobacco has been identified as a growing concern by Trading Standards in Wales. A register must not inadvertently add to the problem of illicit trade in cigarettes. The penalties of failing to register therefore need to be robust. We emphasise that the definitions of “business” need to be carefully considered to encompass not only legitimate traders but also those persons who are trading illegally in tobacco from domestic premises. We feel it should also include online suppliers. Effectively the provisions must apply to anyone who is selling tobacco products in Wales.
We support the need for robust and proportionate penalties for offences and proposed powers of entry (to retail premises) or the ability to seek a warrant (for domestic premises). These are obviously vital. We also support the need for powers to seize tobacco goods in all relevant premises including those that are not registered.
What are your views on creating a new offence for knowingly handing over tobacco and nicotine products to a person under 18, which the is legal age of sale in Wales?
We support the proposals which would bring tobacco products into line with alcohol sales.
Do you believe the proposals relating to tobacco and nicotine products contained in the Bill will contribute to improving public health in Wales?
Yes.
Smoking remains the single greatest avoidable cause of death in Wales (PHW, 2012). The introduction of the ban on smoking in enclosed public spaces in 2007 has been hugely successful in reducing exposure to environmental tobacco smoke and in strengthening public awareness and attitudes towards it. However, reducing the prevalence of smoking, remains a key health priority. Protecting young people from the effects of smoking and deterring young people from taking up the habit are particularly important. Therefore we welcome the proposals and additional powers to help control the availability of tobacco and its potential health impact.
Part 3: Special Procedures Part 3 of the Bill includes provision to create a compulsory, national licensing system for practitioners of specified special procedures in Wales, these procedures are acupuncture, body piercing, electrolysis and tattooing.
What are your views on creating a compulsory, national licensing system for practitioners of specified special procedures in Wales, and that the premises or vehicle from which the practitioners operate must be approved?
We agree that there is a need for a licensing regime that requires approval; the current system is outdated, inadequate and fails on many levels e.g. automatic registration, no competency criteria for the operator, no hygiene standards relating to the premises, difficulty in dealing with unregistered operators etc. We believe that the current legislation does not adequately protect the public. Environmental Health Officers are relying on legislation that is not made specifically for the purpose of tackling illegal operators.
The legislation will cover the whole of Wales and will create continuity throughout Wales that will also be of benefit to the industry.
We support the proposals to regulate for special procedures including the creation of a direct offence of failing to register, a full set of enforcement powers including powers of entry, seizure, prohibition, etc to enable the effective regulation of illegal operators.
We have the following concerns regarding existing provisions:
We agree with the concerns of the Chartered Institute of Environmental Health (CIEH) that many procedures are being done by people with little if any knowledge of anatomy, infection control or healing processes (CIEH, 2014).
We would offer the following observations on the proposed regulations:
• Level 3 fine (£1,000) is too low to act as a meaningful deterrent. The sunbed legislation, which is similar in nature, includes a fine of up to (£20,000); this would be a more appropriate sum. Given the amounts of money that many operators can make, such an amount may not discourage the unlicensed or irresponsible operators.
• In determining whether to grant a licence a local authority should be able to consider whether the applicant is a “fit and proper person” and such a test should be included (akin to the tried and tested procedures for taxi licensing). The test should permit the LA to take into account “any other information” (beyond the “relevant offences” listed in the draft bill) in determining that question. The current proposals do not offer sufficient safeguards.
• We would be opposed to grandfather rights for existing traders. Officers from another local authority have only recently dealt with a high profile public health incident in South Wales which related to a long-standing operator.
Do you agree with the types of special procedures defined in the Bill?
Yes. We support the proposals to include Acupuncture, Tattooing, Body piercing and Electrolysis. These share a theme of preventing blood borne viruses.
However, we strongly support the view that legislation should enable other body modification procedures to be addressed, some of which present significant risks. The aim must be to ensure that all procedures that involve piercing, body modification / enhancement or any invasive treatment or procedure where there is a risk of infection or injury are covered by some form of control or regulation. We are concerned about a growing range of procedures including Botox, dermal fillers, sculpting, microdermabrasion, dermal rolling and dermal implants. We also recognise that new and novel procedures are continually being developed and WG should ensure that the register and any associated enforcement powers will be applicable to the widest range of circumstances and developing trends.
However, we also acknowledge the need to take a considered and incremental approach to encompassing these matters over time. We therefore support framing the provisions in such a way that additional procedures might be added in the future in an efficient and timely manner.
We will be pleased to work with WG officials is relation to such matters.
What are your views on the provision which gives Welsh Ministers the power to amend the list of special procedures through secondary legislation?
We absolutely support that (see above) and also welcome the anticipated opportunity to be consulted upon and to work with WG officials in framing any proposals.
We feel that we need to get ahead of the game and be able to address the next body modification development to emerge. Other procedures are already becoming more popular e.g. scarification, tongue splitting, branding, dermal implants, microdermabrasion. All these procedures provide the potential for serious harm and infection. We feel it is absolutely essential that the provision to amend the list of special procedures reflects the need for amendments to be made expediently and without unnecessary delay. The list of special procedures will need to be dynamic to be able to incorporate new procedures as trends change. A lengthy amendment process will undoubtedly leave local authorities ‘on the back foot’, and having to rely on other legislation, for example, Health Protection Legislation ‘Part 2A Orders’ to tackle new and emerging procedures.
Whilst we feel there is a strong case that procedures such as tongue splitting, branding, dermal implants and scarification should be prohibited, we recognise that to do so may drive activities underground and cause further issues or potentially make it more appealing to some people.
The special treatments industry is dynamic and novel procedures are introduced frequently. Any procedure involving penetration or cutting skin has the potential to release blood and body fluids and therefore there is a risk of blood borne virus transmission; all such procedures should be regulated.
We agree with the provision to add or remove a special procedure, however, we recognise that there is not always a clear line between special procedures and body modification treatments. Many extreme body modifications such as ‘ear pointing/pixie ears’, dermal implants, tongue splitting, scarification etc are essentially unregulated surgical procedures and we believe that such extreme procedures fall outside the expertise of the local authority.
The Bill includes a list of specific professions that are exempt from needing a licence to practice special procedures. Do you have any views on the list?
We are content with these because these professions should have the necessary understanding of good hygiene and infection control. However, we support the proposed provision that individual professions could be required to have a licence in relation to certain procedures that their regulating body feels do not fall within the scope of their competence.
Do you have any views on whether enforcing the licensing system would result in any particular difficulties for local authorities?
We feel that the proposed licensing system would enable local authorities to undertake public protection duties more effectively and more readily. The establishment of a licensing scheme enabling local authorities to recover their costs will ensure that finance is available to deliver.
The proposals would give enhanced enforcement powers and greater flexibility to deal with public health risks in relation to both those that operate legitimately and those that chose not to.
There is a loophole in current legislation enforced by the Health Inspectorate Wales in respect of the use of lasers. Class 3b and 4 lasers (4 being what is used in a hospital setting) only have to be registered with the HIW if used in certain circumstances. Where this class of laser is used on a mobile or ad hoc basis there is no requirement to register therefore this highly dangerous equipment could be used unregulated. We will be facing an increase in the use of lasers when fashion dictates that tattoos are no longer "trendy" and the increase in poor artwork by illegal tattooists will see a demand in laser removal.
The enforcing of a licensing system will have financial implications for local authorities; firstly in terms of the administrative side that would be necessary to support such a system and secondly, regarding the staffing resources necessary to operate a licensing regime for what is an increasing and popular activity.
Do you believe the proposals relating to special procedures contained in the Bill will contribute to improving public health in Wales?
Yes.
See http://www.wales.nhs.uk/sitesplus/888/news/37472 (The recent Newport case)
Proposals contained in the Bill such as requiring a standard of competency will make a significant contribution to protecting health from risks associated with such procedures.
Evidence of public health risk in relation to such procedures is clear. We take the view that any procedure that involves the piercing of the skin poses a very real risk of infection and disease from blood borne viruses many of which can be a serious risk to health and that anyone undertaking such procedures should be competent to do so without putting a person at risk.
Current controls are outdated and inadequate. We need to be able to protect the public to better prevent people from undertaking these procedures if they are not competent or are not fit and proper person to be undertaking such practices. We need also to ensure that the conditions in which such practices take place are hygienic and will prevent infection risks.
We are seeing in our day to day work evidence of a growing range of procedures that put the public at risk. These include: dermal implants, beading, ashing, scarring, dermal fillers, tongue splitting, and a range of other procedures that we might loosely describe as “body modification”. We feel strongly that regulations should permit all such procedures to be controlled and that the regulations should allow the list of procedures to be extended to cover any form of body modification that may arise in the future.
The industry is a very dynamic one and over the past decade it has grown and diversified rapidly. Most towns and villages now have one or two businesses offering some sort of special treatment from the traditional tattoo studio offering tattooing and body piercing to beauty salons offering semi permanent make up and other invasive procedures. These businesses are capturing a very wide range and diverse clientele. As a result of the significant increase in these practices there has been a rise in complaints and infections from the procedures. Over the past few years there have been a number of media reports on individuals suffering infections after receiving a procedure. The very recent case in Newport, South Wales where 6 people were infected and around 800 people potentially affected after receiving a procedure from a local business demonstrates the extent just one business can have.
With the rise in popularity of special procedures there has also been a rise in the number of individuals that operate without registration (as required by the current scheme). This is not only an issue for enforcing bodies but is also of concern to the legitimate operators. Unregistered operators generally try to avoid contact with the local authority by operating from their domestic premises in secrecy thereby avoiding any form of intervention. This authority has had cause to deal with a number of these individuals and in every case we have dealt with, the operators have demonstrated extremely poor knowledge towards cleaning, disinfection and infection control. Therefore, these operators pose an increased risk of their clients developing serious infections such as including hepatitis A, B, and C and HIV, as well as less serious skin infections, which require medical intervention. Some blood borne viruses, for example hepatitis B, can be transmitted by very small volumes of blood; too small to be visible to the naked eye. Such diseases can be debilitating, have a major impact on the quality of life and, if not medically treated, can lead to death.
The proposal to require ‘standards of competence’ before an individual is eligible for a license is an area that we agree with. As mentioned, the risks associated with special procedures can have a major impact on public health. It is essential that operators have an understanding of the risks associated with their procedures, the types of infections that can be transmitted and the possible effects. A competence requirement will demonstrate that operators have sufficient experience and knowledge in areas such as infection control.
Some procedures such as “ashing” might not fall within the regulations as proposed. Ashing may fall outside of the current definition of tattooing (which relies on the use of pigmentation) and care is needed that definitions do not inadvertently exclude procedures that are intended to be covered.
In relation to extending the list, we recognise from an enforcement perspective that we are familiar with the necessary controls and safeguards needed in relation to more traditional procedures. There is merit in a considered and stepped approach to extending the list of special procedures so that we are able to develop training, suitable competence assessments and necessary guidance in relation to the more novel procedures. We are also aware that consideration is needed in distinguishing between a legal service that we might appropriately control and what might be considered an illegal act of assault. We feel some clarity will be required in relation to that question.
Part 4: Intimate Piercing Part 4 of the Bill includes provision to prohibit the intimate piercing of anyone under the age of 16 in Wales.
Do you believe an age restriction is required for intimate body piercing? What are your views on prohibiting the intimate piercing of anyone under the age of 16 in Wales?
Yes, we believe that an age restriction is required for intimate body piercing.
We share the view of the Chartered Institute of Environmental Health (CIEH) that 16 is not an appropriate age for an intimate piercing because:
We note that there is considerable potential for confusion to arise if there is a different age restriction for body piercing and for tattooing. We consider that it would be easier for practitioners, enforcement agencies and individuals if the age restriction for both was to be the same.
We further consider that an age restriction of 16 years for intimate body piercing is likely to give rise to call for the age restriction for tattooing to be reduced to 16 years.
We believe that the age restriction for intimate piercing should be 18 years.
Do you agree with the list of intimate body parts defined in the Bill?
Yes. However we also feel there is a case to add the tongue. In addition to the relatively higher risks of infections associated with tongue piercing, we are aware that there are sexual connotations with piercing of the tongue and for that reason consider there is a case to include in the list of intimate parts.
Do you have any views on the proposals to place a duty on local authorities to enforce the provisions, and to provide local authorities with the power to enter premises, as set out in the Bill?
We support such proposals including the proposal to make it an offence “to enter into arrangements”. This would support enforcement of the provisions including “test purchasing” by local authorities.
We recognise the need for police support in particular in relation to evidence gathering given the intimate nature of such offences and the provisions need to take account of that.
Any duties placed upon local authorities must be supported by adequate funding to enable them to be operated and enforced in an effective manner. A licensing system will have financial implications for local authorities; firstly in terms of the administrative side that would be necessary to support such a system and secondly, regarding the staffing resources necessary to operate a licensing regime for what is an increasing and popular activity.
Do you believe the proposals relating to intimate piercing contained in the Bill will contribute to improving public health in Wales?
Yes, see previous comments relating to special procedures. Additionally, it also contributes to the protection of vulnerable and impressionable children / young people.
Part 6: Provision of Toilets Part 6 of the Bill includes provision to require local authorities to prepare a local strategy to plan how they will meet the needs of their communities for accessing toilet facilities for public use.
What are your views on the proposal that each local authority in Wales will be under a duty to prepare and publish a local toilets strategy for its area?
We agree that the provision of, and access to, toilets for public use is important, particularly to older people and those with specific needs. However, this is not an area in which Environmental Health Departments generally have any enforcement responsibility and it seems none are proposed. We are thus not well placed to comment on the proposals.
We do however recognise all too clearly the current financial pressures on local authorities. We question whether placing a duty on local authorities to develop a strategy is appropriate, acknowledging firstly the difficult financial climate within which any duty would consume resource and secondly that a strategy will not of itself bring about enhanced provision. Care is needed that WG does not merely impose an administrative and financial burden that delivers no real benefit to the public.
Local authorities are being forced to make difficult choices around the prioritisation of services to their communities many of which have a significant impact on health & well-being. Any duty regarding the provision of public toilets may result in local authorities being forced to disinvest in other services that are of equal or greater priority.
Do you believe that preparing a local toilet strategy will ultimately lead to improved provision of public toilets?
See above.
Do you believe the provision in the Bill to ensure appropriate engagement with communities is sufficient to guarantee the views of local people are taken into account in the development of local toilet strategies?
The consultation requirements set in para 92 are too vague to be meaningful.
Do you have any views on whether the Welsh Ministers’ ability to issue guidance on the development of strategies would lead to a more consistent approach across local authorities?
In our experience, such guidance leads to more consistent approaches.
What are your views on considering toilet facilities within settings in receipt of public funding when developing local strategies?
Do you believe including changing facilities for babies and for disabled people within the term ‘toilets’ is sufficient to ensure that the needs of all groups are taken into account in the development of local toilet strategies?
Do you believe the proposals relating to toilet provision in the Bill will contribute to improving public health in Wales?
Finance questions
What are your views on the costs and benefits of implementing the Bill? (You may want to look at the overall costs and benefits of the Bill or those of individual sections.)
We are supportive of the measures set out in the Bill. However, we are naturally concerned by the capacity within local government to deliver additional responsibilities successfully at a time when service cuts and reductions in service standards are all too apparent. We have a great deal of expertise and experience and local authority Environmental Health Departments across Wales are keen to support these new powers and measures. However we ask WG to ensure that such work can be adequately resourced and in particular to consider:
How accurate are the estimates of costs and benefits identified in the Regulatory Impact Assessment, and have any potential costs or benefits been missed out?
Local authority costs summarised in Annex B of the Explanatory Memorandum (see http://www.assembly.wales/laid%20documents/pri-ld10224-em/pri-ld10224-em-e.pdf), appear to be underestimated.
What financial impact will the Bill’s proposals have on you/your organisation? Are there any other ways that the aims of the Bill could be met in a more cost-effective way than the approaches taken in the Bill’s proposals?
Do you consider that the additional costs of the Bill’s proposals to businesses, local authorities, community councils and local health boards are reasonable and proportionate?
Delegated powers
The Bill contains powers for Welsh Ministers to make regulations and issue guidance.
In your view does the Bill contain a reasonable balance between what is included on the face of the Bill and what is left to subordinate legislation and guidance?
Other comments
Are there any other comments you wish to make about specific sections of the Bill?
Do you believe that the issues included in this Bill reflect the priorities for improving public health in Wales?
Yes
Are there any other areas of public health which you believe require legislation to help improve the health of people in Wales?