How to rig a public consultation

A master class from the Department of Health

When plain packaging for tobacco was being considered in the mid-2010s, a government consultation received more responses from opponents of the policy than from supporters. This was awkward for the Department of Health who said something along the lines of ‘it’s not an opinion poll’ and made it clear that it was the quality of the evidence and arguments that mattered, not the quantity. And that is fair enough. Consultations are primarily for people to provide evidence and expertise to guide policy-making.

But in the consultation response on the Tobacco and Vapes Bill, published today, the Department of Health simply weighs the ‘votes’ and briefly mentions the arguments made by each side. It gives the impression that policies have majority support when they do not and relies on the original consultation using leading questions to weed out any sign of dissent.

The consultation received 118,756 responses of which 90,835 were judged to be bots. There were 307 responses from “respondents who disclosed links to the tobacco industry”. Amusingly, the consultation document shows these people’s responses separately and in doing so reveals that they are only slightly more liberal than the other respondents. So much for Big Tobacco’s circle of loyal allies.

On the big question of whether the government should ban people born after 2009 from ever buying tobacco…

• 63.2% agreed with the proposal

• 32.2% disagreed with the proposal

• 4.6% said they don’t know

I suspect that this is a less overwhelming majority than the government hoped for, especially since public consultations tend to get a disproportionate response from public sector organisations and NHS trusts. Nevertheless, the consultation document says this represents ‘widespread support’ and the government is going ahead with it. It dismisses the obvious objection that gradually eroding the legal market will gradually grow the black market:

Concerns were raised over whether this policy would lead to an increase in illicit sales of tobacco. Firstly, as outlined above, this policy will not stop anyone being sold tobacco who can be sold it today. Therefore, there is no immediate prohibition of behaviour that is legal today which could lead to an increase in illicit sales.

But there will be after 2027, so what happens then?

The purpose of the policy is to stop children from starting to smoke. If this generation are never sold cigarettes, they will not become addicted in the first place, so are less likely to seek out tobacco products illegally. This means that both the legal and illicit market will be reduced.

‘If this generation are never sold cigarettes’ is doing a lot of heavy lifting there. Surely the point is that they are going to be sold cigarettes, just not by legitimate retailers. What makes them think that only ‘addicts’ seek out tobacco products? How do they think people start smoking cannabis? Do they think that if people were never sold alcohol before the age of 18, they would never start drinking?

There is so much wishful thinking and stupidity going on here that it is pointless to engage. I suppose people will just have to learn about prohibition the hard way. When they do, I hope they remember the name of Rishi Sunak.

Let’s instead turn to the issue of e-cigarette regulation. The Department of Health is very keen on this but the people who responded to the consultation are divided. The question of whether the government should restrict vape flavours got the following response:

• 47% agreed with restricting vape flavours

• 51% disagreed

• 2% said they don’t know

So there was a slight majority against government intervention, but that doesn’t matter because the next question gave respondents no choice but to agree that there should be some intervention.

Which option or options do you think would be the most effective way for the UK Government and devolved administrations to implement restrictions on flavours?

Option 1: limiting how the vape is described

Option 2: limiting the ingredients in vapes

Option 3: limiting the characterising flavours (the taste and smell) of vapes

Respondents could pick more than one option, but less than half of them included the most extreme of them - Option 3, an actual ban on certain e-cigarette flavours. A large proportion (19%) said ‘don’t know’ which could perhaps be better worded as ‘none of the above’.

And this was followed by another leading question:

Which option do you think would be the most effective way for the UK Government and devolved administrations to restrict vape flavours to children and young people?

Option A: flavours limited to tobacco only

Option B: flavours limited to tobacco, mint and menthol only

Option C: flavours limited to tobacco, mint, menthol and fruits only

This is where the consultation document gets really slippery. We are not told how many people voted for each option. Instead, we are shown how people voted according to whether they picked Option 3 in the previous question. Those people are already in the minority.

What is this supposed to tell us? The people who disagree with banning vape flavours would ban the fewest flavours if they were forced to. That is hardly surprising. A slimmer majority of people who want to ban vape flavours would ban as many flavours as they can. Also not terribly surprising. But we are not told how many people said ‘don’t know’ to this question, presumably because it was a large number and they objected to being given a forced choice.

The fact of the matter is that most respondents did not want to ban any e-cigarette flavours, but you wouldn’t get that impression from the table above. The government is now reportedly going to restrict vapers to four flavours.

There are more questions along the lines of ‘when did you stop beating your wife?’ when the consultation turns to the question of retail displays…

Which option do you think would be the most effective way to restrict vapes to children and young people?

Option 1: vapes must be kept behind the counter and cannot be on display, like tobacco products

Option 2: vapes must be kept behind the counter but can be on display

What do you do if you think vapes should not have to be kept behind the counter? Nothing. There is no option for that so all you can do is not answer the question and be ignored in the consultation response. Of the unknown proportion of respondents who replied…

• 68.3% selected ‘option 1: vapes must be kept behind the counter and cannot be on display, like tobacco products’

• 31.7% selected ‘option 2: vapes must be kept behind the counter but can be on display’

It’s the same story with e-cigarette packaging. The consultation gave three options ranging from ‘prohibiting the use of cartoons, characters, animals, inanimate objects, and other child friendly imagery’ to full, tobacco-style plain packaging. If you are the kind of crazy, laissez-faire libertarian who thinks that it should not be a crime to show ‘inanimate objects’ on a box of vape juice, where do you turn? The answer is nowhere. You don’t count and you won’t be counted. (Even among those who answered the question, less than half went with the tobacco option.)

Having rigged the consultation in this way, the Department of Health concludes…

The feedback from the consultation shows support for policies to regulate vape flavours, point of sale displays, and packaging and product presentation.

But does it? From the limited data that has been published, there is no way of knowing how many respondents supported any change to the regulation of point of sale displays, packaging and product presentation, and the majority opposed regulation of vape flavours.

There was, however, a clear majority (69%) in favour of banning disposable vapes which I have written about here.