The Windsor Framework: what does Brexit mean for the Tobacco and Vapes Bill in Northern Ireland?

In this blog ASH CEO, Hazel Cheeseman, explains that the Tobacco and Vapes Bill is compatible with all EU regulation and will apply in Northern Ireland.

The Tobacco and Vapes Bill has almost completed its journey through Parliament and is in touching distance from royal assent. It will transform the health of future generations, protecting them from a lifetime of addiction, ensuring that no one in the UK born in or after 2009 can be sold tobacco products. However, questions have been raised about whether the Bill can apply in Northern Ireland. This blog covers everything you need to know.

Last year barrister and former Lord Chancellor Sir Robert Buckland KC wrote a blog on the Institute of Economic Affairs website arguing that the Bill could not be implemented due to incompatibility with EU law, which applies as a result of The Windsor Framework.[1] Last week he, again, wrote in the Times that it was ‘legally indefensible’ and could not apply in Northern Ireland due to the post-Brexit framework.  His arguments echo those made in the Daily Mail last year after the Tobacco Manufacturers Association shared a legal opinion they had commissioned with the paper.  

This may sound alarming to those who support the Bill and wish to see it implemented in all 4 nations of the United Kingdom. For this reason, last year, Action on Smoking and Health commissioned academic legal experts from the University of Liverpool who have a public health law background to consider this exact issue. Their advice found that, while the ‘smokefree generation’ is a novel policy and therefore untested in the courts, there are good reasons to conclude that any legal challenge would be unsuccessful and that the Bill is compatible with EU law.

The Tobacco Manufacturers’ Association (TMA) commissioned a legal opinion which was shared with and reported in the Daily Mail.  As the trade association for tobacco companies, the TMA represents the views of its members in the UK: British American Tobacco UK Ltd, Gallaher Ltd (a member of the JTI Group of companies) and Imperial Tobacco Ltd. The IEA, who Buckland wrote is original blog for, have close ties to the tobacco industry and many of the arguments in Buckland’s pieces reflect those made by others using this industry opinion, although he has not disclosed a formal connection.  

It is a common lobbying practice for the tobacco industry to threaten future legal challenges to try and deter governments from regulating its products and commercial practices. The past 20 years have shown how far tobacco manufacturers are prepared to go to maintain the status quo, and to attempt to disrupt tobacco control regulations. ASH CEO Hazel Cheeseman details some of them in this blog discussing the current legal landscape.  By doing so, the industry hopes to stop or delay regulations but also to ‘chill’ the appetite of other jurisdictions to legislate, particularly those will fewer resources to defend legislation, by indicating they will face legal challenge and costs.  

EU law encourages Member States to set and enforce age limits on tobacco sales to protect children and young people from harm. In the absence of specific EU rules on age of sales, Member States remain free to determine the age limit they see as appropriate on their territories. That is why Ireland is implementing an age of sale increase to 21 in 2028.  

However, when imposing national age limits, Member States must comply with EU trade rules. The expert legal opinion has concluded that the generational ban does not constitute a trade restriction within the meaning of the EU Treaties. However, it has also found that, should a court find otherwise, it would be very likely to find the measure justified on public health grounds. Protecting public health, especially the health of children and future generations, is one of the most legitimate reasons for limiting intra-EU trade.  

Given that smoking causes at least 16 different types of cancer and is the leading cause of preventable deaths in the UK, taking over 70,000 lives every year, it is hard to imagine that the Bill would not be seen as proportionate and in line with both the Tobacco Products Directive and EU free movement rules.

The EU Technical Regulations Information system (TRIS) is the process by which member states notify each other about technical rule changes to allow these to be reviewed. A handful of Member States raised concerns about the Tobacco and Vapes Bill through this process.  

The TRIS process is not an approvals process and cannot block Member States from adopting legitimate national measures. Rather, it requires that the Bill is not adopted during the period of notification – which ended on the 18th February. The UK government provided a detailed response to the objections that were raised and the Bill continued its progress through Parliament. Therefore, TRIS is simply a notification process, it does not prevent the Bill from becoming law.  

Some of the countries who have raised objections against the Bill routinely do so in response to tobacco control regulations – as they recently did against France's nicotine pouch ban, which is due to take effect in March 2026.   

Very few jurisdictions have yet considered bringing a tobacco generational sale ban forward anywhere in the world. It was reported that the Republic of Ireland considered the policy alongside raising the age of sale to 21 and opted to proceed with the latter. However, Ministers have left the door open for future rises, noting that future Governments will be able to decide “whether we should keep going and move on from 21" and are watching the UK Government with great interest.  

The European Commission has indicated that “primary responsibility for health protection remains with the Member States and that the Tobacco Products Directive 2014/40/EU does not regulate domestic sales arrangements nor applicable age limits" The most recent development is in France where a private members bill has been tabled and is gathering significant cross-party support.  

Internationally New Zealand was the first country in the world to pass a generational sales ban law. However, it was repealed after a change of Government for political reasons, not legal ones.  

The law officers’ convention means that Government does not comment on whether it has received legal advice on particular issues or what that advice has concluded. However, given the novel nature of this policy it is reasonable to assume that Government lawyers have had significant input into the development of the policy.    

It is worth noting that two consecutive Governments of different political parties, have brought forward this Bill containing the 'smokefree generation' policy. Therefore, two Governments were satisfied with the legal advice they must have received that the Bill is compatible with EU law.    

The Government have been clear that they expect the Bill to be implemented as intended.  

I hope that this blog provides reassurance that the Bill is compatible with all relevant legislation and that it can be fully implemented in Northern Ireland. The Northern Irish Assembly is supportive of the Bill and the creation of a smokefree Northern Ireland. The fact that the tobacco industry feel otherwise should not be a cause of concern.  

We now look forward to royal assent, and the UK becoming the first country in Europe to create a smokefree generation.