Tobacco Advertising and Promotion Bill

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Mr. Ian Bruce: I am sure that the Minister is trying to be helpful to the Committee, but one of the vessels in the Whitbread round-the-world race was called Silk Cut. I presume that, after the Bill is enacted, the vessel would be sponsored in a different country, although its logos would still be shown on television. Would the fact that a BBC journalist commented favourably on that vessel's progress in a race be covered by the Bill? Can the sponsors make sure that they sponsor another country's vessel instead of our own and succeed in their product placement in that way?

Yvette Cooper: Journalistic reporting should not be affected by the Bill, but the sponsorship might be. If it comes under the territorial jurisdiction, the sponsorship will be covered. We shall be discussing sponsorship provisions later in our proceedings. Journalistic reporting, as long as the journalists are not being sponsored by tobacco companies, will not be affected by the Bill.

Mr. Peter Luff (Mid-Worcestershire): I do not know whether now is an appropriate time to test a point about product placement. In Hollywood, cigarettes are often placed in films deliberately. Is that covered by the Bill? Will it be possible to show in the United Kingdom films made in the United States that show a person smoking who is a role model for the young?

Yvette Cooper: The Bill covers distribution of tobacco advertisements in this country. We shall discuss this complex area in detail when we debate the sponsorship part of the Bill. We will then have the opportunity to spell out the matter in considerable detail. The clause deals with what happens in the course of a business; it is not intended to prevent members of the public, journalists, writers or others from talking about tobacco products.

Question put and agreed to.

Clause 2, as amended, ordered to stand part of the Bill.

Clause 3

Advertising: newspapers, periodicals etc.

Question proposed, That the clause stand part of the Bill.

Mrs. Spelman: I am conscious that we shall soon be interrupted by Divisions in the House. I have no wish to hold up our proceedings. We have a firm end date for the Committee proceedings and it is important to us to ensure that we spend enough time on the measures that we regard as important. By not putting any mileposts into the timetable, the Government have left us with the responsibility of doing just that. We can have a relatively short clause stand part debate. That is not because the clause is not important. It is important. It is hard to debate such clauses without debating the defences. I want to probe the Minister a little about how the clause will work in practice. We spent little time on Second Reading discussing enforcements.

Staff in corner shops and newsagents work extremely hard. The hours are often anti-social, and it is literally a rush in the rush hour, with many commuters in the shop, and school children calling in to buy sweets. Shop workers are ill-prepared to meet the challenge that clause 3 sets them, particularly with regard to newspapers, periodicals and other products that contain tobacco advertisements. It is not easy for those who sell publications or offer them for sale, as defined in subsection (c).

How will the clause be enforced? Will trading standards officers visit every corner shop to ensure that each newsagent has checked hundreds of periodicals and expect him to put his hand on his heart, and say, ``Well, I assure you that, as far as humanly possible, I have checked that the publications on sale in my premises do not contain tobacco advertising—but, of course, I could always make a mistake.''?

Such checks would involve much work for trading standards officers, and they are already stretched in fulfilling the important duties that they undertake. Many corner shops and newsagents selling publications could be caught by the clause. How would it work in practice?

Mr. Ian Bruce: When I was in business many years ago, I had a nasty experience in connection with the words ``publishing'' and ``published'', and the definition of those words is at the heart of the clause. Anyone, who is in business ``publishes'' in the United Kingdom, and in line 35 of clause 19

    ``references to publishing include any means of publishing''.

I was given a document that allegedly contained a libel by somebody who applied for a job. I passed the document on to somebody else, and was advised by a lawyer that I had ``published'' that document. I thought to myself, ``Surely that is not the meaning of the word `published''', but it is. I have a piece of paper that my hon. Friend the Member for Tewkesbury (Mr. Robertson) has just passed to me in his own handwriting, and he has therefore published this document. If I were now to give it to my hon. Friend the Member for Meriden, I would have published that document to her. That is the legal meaning, as I understand it, of publishing.

Members of the Committee reading the word ``published'' in clause 3 will, I suspect, understand it to mean that somebody gets a printing press, collates the information, and sends it out for publication. In fact, under that definition, a newsagent who passes on something from their shelves, even if it is printed and produced elsewhere, is publishing it. A large number of retailers have been threatened with legal action if they refuse to remove publications from their shelves because they are publishing a libel, or untruth, or something of that nature to which somebody objects.

Mr. Laurence Robertson (Tewkesbury): I ought to declare a registered interest in the tobacco industry, but it is a different point that I wish to raise. Many years ago there was a legal case in which someone sold on a bottle of water or fizzy pop, which contained something that it should not, and the person who sold it on was held liable. Is that an accurate analogy?

Mr. Bruce: Certainly. With regard to product liability, one is part of a chain. Let us suppose that a 12-year-old is reading a tobacco advertisement. If that advertisement is in Le Monde, which is produced in France, the individual who sells it on is, according to the legal definition of the word, publishing, not distributing Le Monde, unless there is a provision to counter that. The word ``publishing'' includes simply passing it on, without even recopying it, to another person. I hope that the Minister will be able to respond to that point. As I said, it would have been nice to have somebody from the Home Office sitting on her team, who could advise her of the legal definition. I am sure that legal advice can be sent for if necessary.

Yvette Cooper: The hon. Member for Meriden raised concerns about how a corner shop might be covered by the clause and the Bill generally. The defences for the corner shop, as for the proprietor or editor of the publication and everybody else involved, are set out primarily in clause 5, which we shall discuss later. Broadly, if such persons did not know, had no reason to suspect or could not reasonably have foreseen that tobacco promotion was the effect of the advertisement, they will have a defence. However, if a retailer had reason to suspect, there would be a case to answer. If a retailer did not know and had no reason to suspect that the newspapers that he was selling contained tobacco advertisements, or, as we shall discuss under clause 4, if the principal market of those newspapers was outside the UK, nobody would expect him to check every magazine that he sold.

Mrs. Spelman: The problem is that there is an active and a passive attitude. One can passively make no effort to know, and say, ``Well, I didn't know.'' Alternatively, there is the active response of someone who behaves diligently and says, ``I have done my best.'' The difficulty is that the passive response is the easiest and is most likely to allow people to get away with a transgression.

Yvette Cooper: That is why the wording is

    ``had no reason to suspect''.

Clearly, if a proprietor had good reason to suspect and deliberately turned a blind eye, he would have a case to answer under the Bill. If he had no reason to suspect, he would have no reason to search every magazine on his shelves either.

Mr. Ian Bruce: If a newsagent in this country speaks French, has a French clientele, imports Le Monde, reads Le Monde every day and knows that it promotes tobacco products, is he committing an offence because he is part of the publishing process of providing such an advertisement to his clients?

Yvette Cooper: A different defence would exist in that situation. We shall discuss that defence under clause 4, in relation to publications from outside the United Kingdom, the principal market of which is not the United Kingdom.

The hon. Member for South Dorset raised concerns about publishing. The underlying premise of the Bill is that everyone in the chain is potentially liable.Whether the definition of publishing to which he refers is broad or narrow, if a person is distributing or offering an advertisement for sale in the course of their business, they will have a case to answer under the Bill. I emphasise that it must be during the course of business. Passing a piece of paper privately from one person to another would not be regarded as publishing an advertisement in the course of a business, so the provisions would not apply. Clause 3 makes it clear that everyone in the chain is potentially liable; various defences in terms of reasonable circumstances follow on. I ask the Committee to accept the clause.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4

Advertising: exclusions

3.15 pm

Mrs. Spelman: I beg to move amendment No. 5, in page 2, line 17, leave out from `in,' to `information' in line 18 and insert

    `a communication with a person who has requested, or who has previously requested,'.

The amendment is directed at specialist tobacco suppliers who, as I said in the debate on clause 1, are in danger of being hit hard by the Bill. The clause does not apply exclusively to specialists, but they are affected most by its drafting. The amendment, which changes subsection (2), would allow communication between a business and its known customers to be legitimate when a particular request has been made.

Some specialists who do not own shops depend heavily on mailing lists for their clientele. If they have to wait for a particular request before making a communication, they may face diminishing returns. The number of people specifically requesting information will reduce over time. In other words, it will be a problem if the specialists cannot initiate communication. A cigar supplier, for example, may want to initiate communication by informing customers whether the Cuban tobacco harvest will impact on the quality of the product or on prices. Under the clause, however, a specialist supplier would have to wait for requests for that information to come in.

We all know that mail order companies often have a tick-the-box arrangement and if the box is unticked a customer can be inundated with all sorts of unwanted information. One learns to avoid that. Would that sort of arrangement help the specialist to overcome the problem? A mail order form often has a default arrangement; people will receive a pile of junk mail unless they tick the box. Does the Minister accept that such a default position could constitute a request?

The purpose of this probing amendment is to get to the bottom of the restriction on communication between businesses and their customers. The net should be widened to include not just those who have requested information but those who have requested it—or transacted with the business—in the past. Customers tend to be a passive lot, but may respond to proactive information from a direct mail supplier. If the clause prevents suppliers letting customers know what is on offer—or, say, that the price of cigars is going to soar because of a disastrous harvest in Cuba—it will be restrictive for suppliers.

The amendment would allow the existing self-regulatory rules, which allow tobacco advertisements to continue; tobacco advertisements are allowed if they are contained in communications to individuals on a database of known adult smokers, who have confirmed their status as such and who always have the right to be removed from that database. That was the protection afforded by the voluntary code. Such a right is also provided by the Data Protection Act 1998. How will the Bill sit with the rights conferred under that Act?

We all know that we must now be extremely careful with information. It is not that we cannot operate unless we receive a particular request, but we are limited. The amendment would provide adequate protection for individuals, while permitting companies legitimate commercial freedom, especially specialist tobacco suppliers. Without it, the Bill will place heavy constraints on some small suppliers who depend on direct mailing for their businesses. In effect, their clientele is likely to diminish over time to the point at which they may go out of business. We can foresee such consequences, and we want to avoid that happening.

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