Health and Care Bill (HL Bill 71)

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(iii)where the person’s relevant business consists of two
or more undertakings that each prepare accounts, the
amount is to be calculated by adding together the
turnover of each, save that no account is to be taken of
5any turnover resulting from the supply of goods or
the provision of services between them.

(4)In determining the amount of a penalty under subsection (1) the
appropriate regulatory authority must have regard to any statement
published by OFCOM under section 392 (guidelines to be followed
10in determining amount of penalties).

(5)A financial penalty imposed under this section, if not paid within the
period fixed by the appropriate regulatory authority, is to be
recoverable by the appropriate regulatory authority as a debt due to
them from the person obliged to pay it.

(6)15Where a financial penalty is imposed under this section in respect of
matters appearing to OFCOM to have a connection with Northern
Ireland and no connection with the rest of the United Kingdom, the
penalty must be paid into the Consolidated Fund of Northern
Ireland.

(7)20In any other case, a financial penalty imposed under this section is to
be paid into the Consolidated Fund of the United Kingdom.

368Z17 Power to demand information

(1)The appropriate regulatory authority may give a person a notice
demanding information that the authority require for the purpose of
25carrying out their functions under this Part.

(2)The notice may relate to any information that the person appears to
have or be able to generate.

(3)A notice under this section must—

(a)describe the required information,

(b)30fix a reasonable period within which the information is to be
provided, and

(c)set out the appropriate regulatory authority’s reasons for
requiring it.

(4)A notice under this section may specify the manner in which the
35information is to be provided.

(5)The appropriate regulatory authority may not require the provision
of information under this section unless they have given the person
from whom it is required an opportunity of making representations
to them about the matters appearing to them to provide grounds for
40making the request.

(6)Section 368Z15 applies in relation to a failure to comply with a
demand for information imposed under this section as if that failure
were a contravention of section 368Z14.

(7)In this section “information” includes copies of advertisements.

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368Z18 Guidance

(1)The appropriate regulatory authority must draw up and, from time
to time, review and revise, guidance setting out their intentions
concerning the exercise of their functions under this Part.

(2)5The appropriate regulatory authority must consult the Secretary of
State before drawing up or revising the guidance.

(3)The appropriate regulatory authority must publish the guidance and
any revised guidance in such manner as they consider appropriate
for bringing it to the attention of the persons who, in their opinion,
10are likely to be affected by it.

368Z19 The appropriate regulatory authority

(1)OFCOM may designate any body corporate to be, to the extent
provided by the designation, the appropriate regulatory authority
for the purposes of any provision of this Part, subject to subsection
15(9).

(2)To the extent that no body is designated for a purpose, OFCOM is the
appropriate regulatory authority for that purpose.

(3)Where a body is designated for a purpose, OFCOM may act as the
appropriate regulatory authority for that purpose concurrently with
20or in place of that body.

(4)OFCOM may provide a designated body with assistance (including
financial assistance) in connection with any of the functions of the
body under this Part.

(5)A designation may in particular—

(a)25provide for a body to be the appropriate regulatory authority
in relation to advertisements of a specified description;

(b)provide that a function of the appropriate regulatory
authority is exercisable by the designated body—

(i)to such extent as may be specified;

(ii)30either generally or in such circumstances as may be
specified;

(iii)either unconditionally or subject to such conditions as
may be specified.

(6)The conditions that may be specified pursuant to subsection
35(5)(b)(iii) include a condition to the effect that a function may,
generally or in specified circumstances, be exercised by the body
only with the agreement of OFCOM.

(7)A designation has effect for such period as may be specified and may
be revoked by OFCOM at any time.

(8)40OFCOM must publish any designation in such manner as they
consider appropriate for bringing it to the attention of persons who,
in their opinion, are likely to be affected by it.

(9)OFCOM may not designate a body unless, as respects that
designation, they are satisfied that the body—

(a)45is a fit and proper body to be designated,

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(b)has consented to being designated,

(c)has access to financial resources that are adequate to ensure
the effective performance of its functions as the appropriate
regulatory authority (taking into account any financial
5assistance that OFCOM intends to provide under subsection
(4)),

(d)is sufficiently independent of persons who carry on business
that involves or is associated with the manufacture or sale of
less healthy food or drink products, and

(e)10will, in performing any function to which the designation
relates, have regard in all cases—

(i)to the principles under which regulatory activities
should be transparent, accountable, proportionate,
consistent and targeted only at cases in which action
15is needed, and

(ii)to such of the matters mentioned in section 3(4) as
appear to the body to be relevant in the
circumstances.

(10)Subject to any enactment or rule of law restricting the disclosure or
20use of information by OFCOM or by a designated body—

(a)a designated body may provide information to another
designated body for use by that other body in connection
with any of its functions as the appropriate regulatory
authority;

(b)25a designated body may provide information to OFCOM for
use by OFCOM in connection with any of their functions
under this Part;

(c)OFCOM may provide information to a designated body for
use by that body in connection with any of its functions as the
30appropriate regulatory authority.

(11)In carrying out their functions as the appropriate regulatory
authority, a designated body may carry out, commission or support
(financially or otherwise) research.

(12)In this section—

  • 35“designation” means a designation under this section and
    cognate expressions are to be construed accordingly;
    “specified” means specified in a designation.”

368Z20 Power to amend this Part to extend prohibition

(1)The Secretary of State may by regulations amend this Part for the
40purpose of prohibiting persons from doing either or both of the
following (so far as not already prohibited)—

(a)placing on the internet advertisements for an identifiable less
healthy food or drink product;

(b)making arrangements for advertisements for an identifiable
45less healthy food or drink product to be placed on the
internet.

(2)For the purposes of subsection (1)

(a)“placing” includes leaving in place;

(b)“placed” includes continues to be placed.

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(3)The provision which may be made by regulations under subsection
(1) by virtue of section 402(3)(c) includes provision repealing,
revoking or amending provision made by or under any of the
following whenever passed or made—

(a)5an Act;

(b)an Act of the Scottish Parliament;

(c)a Measure or Act of Senedd Cymru;

(d)Northern Ireland legislation.

(4)Before making regulations under subsection (1), the Secretary of
10State must consult such persons as the Secretary of State considers
appropriate.

(5)A statutory instrument containing regulations under subsection (1)
may not be made unless a draft of the instrument has been laid
before and approved by a resolution of each House of Parliament.

368Z21 15 Interpretation

In this Part—

  • “appropriate regulatory authority” is to be construed in
    accordance with section 368Z19;

  • “less healthy”, in relation to a food or drink product, has the
    20meaning given by section 368Z14(5)(e).”

Part 3 Consequential amendments

4The Communications Act 2003 is amended as follows.

5In section 368C (on-demand programme services: duties of the appropriate
25regulatory authority), after subsection (5) insert—

(6)The appropriate regulatory authority must draw up and, from time
to time, review and revise, guidance setting out their intentions
concerning the exercise of their functions under this Part in relation
to the prohibition imposed by section 368FA (advertising: less
30healthy food and drink).

(7)The appropriate regulatory authority must consult the Secretary of
State before drawing up or revising guidance under subsection (6).”

6In section 402(2) (instruments subject to negative procedure) —

(a)in paragraph (a) omit “or regulations under section 368BC”;

(b)35after paragraph (a) insert—

(aza)regulations under—

(i)section 321A(5) (see subsection (7) of that
section),

(ii)section 368BC (see subsection (7) of that
40section),

(iii)section 368FA(6) (see subsection (8) of that
section),

(iv)section 368Z14(7) (see subsection (9) of that
section), or

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(v)section 368Z20 (see subsection (5) of that
section),”.