Tobacco and vapes

This guidance is for Scotland

Certain products cannot be sold to persons below a legal minimum age; for tobacco and vapes this legal minimum age is 18.

A packet of cigarettes must contain a minimum of 20 cigarettes and must only be sold in its original packaging. A notice must be displayed stating 'It is illegal to sell tobacco products to anyone under the age of 18'.

Tobacco products must not be on display in-store and there are also restrictions on how prices and price lists are displayed.

Young people should always be asked for proof of their age.

Note: in Scottish law, 'nicotine vapour products' is the legal term used to describe vapes (which are sometimes also referred to as e-cigarettes) and associated products; the generic term 'vapes' is used in this guide.

What is meant by tobacco, tobacco products and vapes?

'Tobacco' is defined as including cigarettes, any product containing tobacco for oral or nasal use (for example, snuff) and smoking mixtures used as a substitute for tobacco (for example, herbal cigarettes). 'Cigarettes' include cut tobacco rolled up in paper, tobacco leaf and other material in a form that is capable of immediate use for smoking.

A 'tobacco product' is defined as "a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed".

'Smoking related products' are cigarette papers, tubes, filters, holders, apparatus for making cigarettes and pipes for smoking tobacco products.

A 'nicotine vapour product' is any type of device or any part of a device used to inhale nicotine vapour or any other device that resembles these. Included in the definition are e-cigarettes, e-cigars and e-shisha, and other products such as flavoured non-nicotine vapour products. These products are often referred to as 'vapes'. Also included are the individual parts that make up the device, refill containers and their contents. In this guide, 'vapes' refers to all the products mentioned in this paragraph, not just the inhaling devices.

The following are not included in the definition of a nicotine vapour product:

• tobacco products
• smoking-related products
• medicinal products
• medical devices

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Age restriction on the sale of tobacco products

The law states that it is an offence for any person to sell tobacco products or cigarette papers to anyone under 18. This is a strict-liability offence, which means the owner of the business can be held responsible as well as the member of staff who made the sale. If you are charged with this offence, you have the legal defence that you took all reasonable precautions and exercised all due diligence to avoid committing the offence. This is commonly known as the 'due diligence' defence. The 'Keeping within the law' section of this guide includes steps that can be taken to provide a 'due diligence' defence.

You must display a notice that states:

The notice must be displayed in a prominent position and be easily visible at the point of sale. The notice must be no less than 297 mm x 420 mm (A3) and the characters must be no less than 36 mm in height. Your local Trading Standards service or your tobacco supplier may be able to provide a notice for you to use.

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Age restriction for the sale of vapes

A person who sells a vape to someone under 18 commits an offence. This is a strict liability offence; the owner of the business can be held responsible as well as the member of staff who made the sale.

There is an exception for vapes that are licensed as medicines or medical devices. This exemption only applies to the extent to which the product is authorised.

If you sell vapes you might want to display a poster advising customers that you will not sell to under-18s:

Note: unlike the tobacco poster, this is not a legal requirement and is simply suggested wording.

Single use, disposable vapes are increasingly popular with children, largely due to their bright colours, appealing flavours and price. You and your staff should be alert to attempts by children to buy these products and take extra care to avoid underage sales.

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Age of the person making the sale

For premises that are not registered, an employer of a person (or any other person who has management control of those premises) who allows the sale of a tobacco product, cigarette papers or a vape by a person under 18 commits an offence.

If the sale takes place on registered premises and the person under 18 making the sale is authorised to do so in writing, no offence is committed.

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Proxy purchase of tobacco or vapes

An adult who buys or attempts to buy tobacco, cigarette papers or a vape on behalf of someone under 18 commits an offence. This is called 'proxy purchasing'.

It is the buyer and not the trader who commits an offence under these circumstances. However, be aware of young people loitering outside your premises; they may ask adult customers to buy tobacco, cigarette papers or a vape for them. It is advisable to refuse such sales.

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Is it legal to sell single cigarettes?

No. A packet of cigarettes must contain a minimum of 20 cigarettes. It is an offence to sell cigarettes to any person other than in their original package. This means you must not split a pack and sell in lesser quantities.

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Can tobacco or vapes be sold from vending machines?

No. It is illegal to provide a cigarette or vape vending machine that can be operated by customers.

Any vending machine on the premises can only be used for storage where the public does not have access (such as behind the counter).

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Register of tobacco and vapes retailers

You must register with the Scottish Government to become a tobacco and/or vape retailer. This can be done online and the application must contain your name and the address of the premises (including moveable premises) from which you intend to retail tobacco and/or vapes. If you are registered to sell tobacco and you intend to retail vapes, you must apply to change your registration to include vapes.

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Tobacco or vape retailing banning orders

A person may be banned from carrying on a tobacco or vape business from the premises at which they committed three or more offences against tobacco or vape legislation within a period of 24 months. The ban can be for any period up to 24 months.

A person banned from retailing tobacco or vapes at a premises commits an offence if they retail tobacco or vapes at those premises during the period of the ban.

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Tobacco display

Under the Sale of Tobacco (Display of Tobacco Products and Prices etc) (Scotland) Regulations 2013 you are required to cover your display of tobacco products. It is an offence to display tobacco products unless a specific request to purchase tobacco has been made to you by a person over the age of 18.

Retailers must not have tobacco products and smoking-related products (cigarette papers, tubes, filters, holders, apparatus for making cigarettes and pipes for smoking tobacco products) on permanent, open display - for example, on public view on gantries behind the counter. The size of each display must not exceed 1,000 cm². Tobacco retailers must make sure that tobacco products and smoking-related products are out of public sight and cannot be seen unless the display is incidental to normal stocktaking, cleaning, pricing or restocking.

There are specific rules for bulk and specialist tobacconists.

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Tobacco prices

Only three types of tobacco price display are permitted:

• poster style lists (up to A3 in size), which can be permanently on show. The legislation states that these must not exceed 1,250 cm² (A3-sized paper falls within the legal size limit)
• a price list available on request (picture price list), which must not be left on permanent show but which can be shown to any customer who asks for information about tobacco products or smoking-related products. Good practice would suggest that age checks should be carried out before showing the picture price list and requests from children and young people under 18 should be refused
• price labels, which can be placed on shelving, storage units or tobacco jars. One price label is permitted for each product, either on the covered shelf where the product is stored or on the front of the storage unit where the particular tobacco product or smoking-related product is held pending sale

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Cigarette lighter refills

Under the Cigarette Lighter Refill (Safety) Regulations 1999 it is an offence to supply any cigarette lighter refill canisters containing butane to anyone under 18. This is because of the potential for abuse by 'sniffing' the gas, which can be extremely dangerous. See 'Cigarette lighter refills' for further details.

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Matches and lighters

It is not illegal to sell matches or lighters to children. However, it is recommended that you do not sell these items to children, who are unlikely to have a legitimate use for them.

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Defences

If you are charged with any of the offences detailed above, you have the defence that you took all reasonable precautions and exercised all due diligence to avoid committing the offence. For age-restricted products such as tobacco, cigarette papers and vapes this generally means that you believed the person was aged 18 or over and you had taken all reasonable steps, including being shown photographic identification, to establish their age.

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Age verification policy

You must have an age verification policy, which is available for inspection by an enforcement officer. Your written age verification policy must state exactly what steps are to taken to establish the age of a person who appears to be under 25.

It should be recorded on the template provided by the Scottish Government in its age verification guidance and you are advised to include the following details:  

• name and address of the premises
• date on which the policy was agreed
• category of products sold on the premises
• preferred age that the retailer or staff will use to decide whether a challenge to a customer's age will be made (this cannot be below 25)
• the way staff will raise the need for proof-of-age with a customer
• proof-of-age documents that the retailer has decided that can be used on the premises
• what staff have been asked to look for in proof-of-age documents
• the way staff will handle refusals on the basis that proof-of-age has not been provided or where proof-of-age documentation is not convincing

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Keeping within the law

In order to keep within the law and satisfy the legal defences, you must have a written age verification policy (see above). You are advised to have effective systems to prevent certain displays of tobacco products, cigarette papers or vapes, and their sale to under-18s.

To ensure these systems stay effective, they need to be regularly monitored and updated (where necessary) to identify and put right any problems or weaknesses, and to keep pace with any advances in technology.

Key best practice features of an effective system include the following.

Age verification checks

Always ask young people to produce proof of their age. The Chartered Trading Standards Institute, the Scottish Government and Police Scotland support the UK's national Proof of Age Standards Scheme (PASS), which includes a number of card issuers. You can be confident that a card issued under the scheme and bearing the PASS hologram is an acceptable proof of age. The Scottish Government also endorses the Young Scot card.

A passport, photocard driving licence, Ministry of Defence form 90, European Union national identity card or a biometric immigration document is also acceptable but make sure that the card matches the person using it and the date of birth shows they are at least the minimum age of 18.

You do not have to accept all of the above forms of identification and it may be best to exclude any type of document that your staff are not familiar with.

Some young people may present false identification cards so it is advisable to also check the look and feel of a card. For example, the PASS hologram must be an integral part of a PASS card and not an add-on.

If the person cannot prove that they are at least the minimum legal age - or if you are in any doubt - refuse the sale.

Operate an age verification policy

It is a legal requirement that you and your staff check the age of those attempting to buy tobacco, tobacco products and vapes. All customers who appear to be under 25 must be asked to show valid proof of age that verifies they are over 18.

Staff training

Make sure your staff are properly trained. They need to know which products are age restricted, what the age restriction is and the action they must take if they believe a person under the legal age is attempting to buy. It is important that you can prove your staff have understood what is required of them under the legislation.

This can be done by keeping a record of the training and asking your staff to sign to say that they have understood it. These records can then be checked and signed on a regular basis by management or the owner.

Maintain a refusals log

It is best practice to record all refusals (date, time, incident, description of potential buyer). Maintaining a refusals log will help to demonstrate that you actively refuse sales and have an effective system in place. It is advisable that the manager / owner checks the log to ensure that all members of staff are using it.

A specimen refusals log is attached.

Some tills have a refusals system built in. If you use a till-based system, ensure that refusals can be retrieved at a later date. Be aware that some refusals are made before a product is scanned.

Till prompts

If you possess an EPoS system, it may be possible to use it to remind staff of age restrictions via a prompt. Alternatively, stickers can be used over certain product barcodes.

Signage

You must display the legally required tobacco notice (see 'Age restriction on the sale of tobacco products' above). It is not a legal requirement but you can, if you wish, display a poster advising customers that you will not sell vapes or nicotine refills to under-18s (see 'Age restriction on the sale of vapes' above). These should deter potential purchasers and act as reminders to staff.

Closed circuit television (CCTV)

A CCTV system may act as a deterrent and reduce the number of incidents of underage sales.

Online sales

If you sell by distance means, such as online or via a catalogue, you should set up an effective system capable of verifying the age of potential purchasers. Please see 'Online sales of age-restricted products' for more information.

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Packaging, labelling, advertising and tracking

For information on the requirements regarding packaging etc, see 'Tobacco, vapes, etc: packaging, labelling, advertising and tracking'.

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Further information

The House of Commons Library has published a briefing paper entitled The Regulation of E-cigarettes, which "provides an overview of the regulation, health, and product safety aspects, of e-cigarettes".

More information about vapes can be found in 'Vaping products' in Business Companion's Business in Focus section.

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Trading Standards

For more information on the work of Trading Standards services - and the possible consequences of not abiding by the law - please see 'Trading Standards: powers, enforcement and penalties'.

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In this update

New section: 'Age verification policy'. Links added to House of Commons Library briefing paper and to new Business in Focus guide 'Vaping products'.

Last reviewed / updated: May 2024

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