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The Minister for Public Health (Yvette Cooper): I will try to respond to some of the points that have been raised on the clause, although we may also have discussed them during our debates on the amendments. We will examine the wording around ``nominal sum'' but subsection (6)—as part of clause 8, which sets up the regulation-making powers—is important. We are not aware of products and coupons being sold for a nominal sum at the moment, but that would be an obvious and easy way to get around a ban on free distributions. It is for exactly that reason, that we are keen to make sure that we do have a regulation- making power in this area, as we want to prevent future abuses and manoeuvring by the tobacco industry to get around what would otherwise be a ban on free distributions.
The hon. Member for South Dorset again made a point about credit cards and loyalty cards, and the position is as I set it out earlier. A credit card would not be covered, because a credit card is not a coupon. Nor, in itself, is a loyalty card. The points accumulated on a loyalty card could be interpreted as coupons, because they are redeemable—the loyalty card is not redeemable, but the points may be. The distinction that I made earlier, still applies: the key question is whether the purpose or effect of giving away the product or coupon is to promote a tobacco product? If one receives double points on a loyalty card for buying cigarettes, rather than anything else at Sainsbury's, where particular benefits may apply to the loyalty card, that would provide a specific incentive to buy tobacco products. A particular promotion of tobacco products would be caught by the Bill. If there were a more general incentive to spend more money, in the broader sense, that did not particularly promote tobacco products, then it would not be covered by the Bill. The test is whether or not cigarettes or tobacco products are promoted.
I want to clarify our earlier discussion about students, casual workers and others in corporate marquees who have signed on for the day. The phrase,
``in the course of a business''
is intended to refer to an ongoing concern. However, while people are involved in a business, even if temporarily employed, they are covered by the Act. If a student hands out cigars or cigarettes because he or she feels like it, that is clearly not part of a business and is not done in the course of business. However, if students are paid to do so, or if they are taken on for a day as casual labour, they will, unless they have a defence, be caught by the Act. If they knew what they were doing, then they are potentially guilty of an offence. If they did not know, and could not have foreseen, they would have a defence.
It is not likely to be standard practice to prosecute the most junior member of a company, but the principle set out in clauses 2 and 3 applies equally here. The Bill includes everyone involved in a chain. If those people know about and are involved in promoting or distributing the tobacco product—or, as in this case, in distributing coupons—and do not have the defence of having been unable to foresee its effect, they may be guilty of an offence. The standard that applies in the clause is the same as that applied in earlier clauses.
Mrs. Spelman: I am glad that the Minister has returned to that point, which was left unclear at this morning's sitting. Her explanation is helpful. Does she accept that a group that we have not hitherto thought of alerting to the need to take a fresh look at the matter is the broadcasting corporate entertaining business—which I suspect will not be intimately versed in the details of the Tobacco Advertising Bill, which it would not regard as its core business?
Yvette Cooper: The key issue is whether a tobacco product is being promoted.
I shall clarify the question of cigars circulating at a dinner party. If a private business man hands out cigars that are paid for as part of corporate entertainment, with a purpose of persuading customers to buy, for example, computer software, but with neither the purpose nor the effect of promoting a tobacco product, that clearly constitutes a defence. The inability to foresee that an action would promote a tobacco product would also constitute a defence. However, the Bill covers a tobacco company that hands out free cigars and cigarettes in order to promote a tobacco product or a company that pays another company to distribute free tobacco products in order to promote a tobacco product, whether they are being promoted to Members of Parliament or to customers at an event.
The purpose of the clause is to tackle free distributions of cigarettes—perhaps to students—toys, teapots and other goodies used to promote tobacco products. That is the crunch question: the Bill seeks to prevent the use of free distributions as alternative methods of marketing and promoting cigarettes and smoking. That is the health aim that we are trying to achieve.
Question put and agreed to.
Clause 8 ordered to stand part of the Bill.
Clause 9
Prohibition of Sponsorship
Mrs. Spelman: I beg to move amendment No. 39, in page 4, line 24, leave out `or effect'.
The Chairman: With this it will be convenient to take amendment No. 41, in page 4, line 39, at end insert—
`(c) that the purpose of what was done was to promote a tobacco product outside the United Kingdom and that the promotion of the product in the United Kingdom was incidental to that purpose and occurred only as a result of the broadcasting or publication by a third party of something in the United Kingdom for a purpose other than the promotion of a tobacco product.'.
Mrs. Spelman: We move to a completely different subject, which we discussed only briefly on Second Reading. The problem with the clause—it is a problem that we have encountered before in the Bill—is that it does not give us a clear definition, in this case of sponsorship. A lack of clear definition may cause confusion. The word is used in many different contexts. Hon. Members use it in a parliamentary context when we talk about sponsoring a Bill: indeed, I received a good response from hon. Members on both sides when I sought sponsors for my private Member's Bill on adoption.
Sponsorship can be used to describe support for an activity, event or organisation in return for something—or not as the case may be. I do not expect anything from hon. Members in return for sponsoring my Bill, except, perhaps, that they may be present on Second Reading. Sponsorship can, but does not necessarily, give rise to an agreement—again, I have no formal agreement with the hon. Members who supported my Bill. The clause is framed in terms of a sponsorship agreement, in which a party to it makes a contribution towards something. That is one definition of sponsorship but it may not cover all aspects of sponsorship. When an agreement is struck the parties usually know what they have agreed to do under that agreement, and that is often, thought not always, confirmed in writing. Under the definition of the sponsorship agreement given in the Bill, it is not clear where any written agreement is needed. That could open a considerable loophole.
As far as I can tell, nothing in the Bill will successfully tackle the problem of product placement. Clearly when a film star is asked by a tobacco company to smoke in a film, there may be some form of agreement, but if there is no requirement for that agreement to be in writing, so that it can be confirmed or proven to exist—if, in short, the agreement is verbal—the Bill will open quite a loophole. There is no question that product placement of that kind in films has a big impact on the group that all parties seek to protect—young people. Far more effectively than coupons, bone china mugs and all the other things described earlier, visual images of young peoples' role models who are smoking has a very great impact indeed.
I am not convinced that the Government's drafted version of a sponsorship agreement is really logical. People usually know their purpose or whether they are party to an agreement, but they cannot necessarily know the results of entering into an agreement. As drafted, clause 9(1) would create an offence arising out of a result, and that is a difficult concept. I imagine that when a sponsorship agreement is struck between two parties, whether in writing or not, what is in it for the parties concerned is very much left at face value. The full effect of his or her sponsorship may not be spelled out to the individual concerned. In consequence, perhaps, without seeing the detail of the agreement, it may be difficult to judge whether that person should have known what the effect of that sponsorship agreement would be.
Mr. Ernie Ross: Following the scandals that have surrounded all types of sponsorship, sports stars and media personalities are not stupid. If they are signing a sponsorship agreement, they have lawyers and agents advising them. They must go into the small print of an agreement, and they must be quite clear about what they are sponsoring. The most recent example in which people discovered that they were sponsoring something that was not acceptable was the manufacture of balls used in football matches. Someone discovered that Adidas was using cheap child labour. Agents are conscious of these things. Surely it is the responsibility of the person who signs the sponsorship to find out what is entailed. That is the Government's responsibility.
Mrs. Spelman: The hon. Gentleman's argument is predicated on the fact that something was signed, but it may not always have been signed, since the Bill contains no requirement that it should be. An agreement could be purely verbal. In such a case, it could be very unclear—and very difficult to prove in a court of law what was actually said as part of that agreement.
My desire is entirely to help the Government. I see a big loophole, and I would be the first to say that when all conventional methods of advertising are shut down, product placement remains an important instrument. As far as I can see, at the moment, we have very little control in this country. Many films are produced out of the United Kingdom. Some of the greatest blockbusters are produced in Hollywood, and are not governed by constraint of the type in the Bill, but they are shown in British cinemas up and down the land and contain strong subliminal images about tobacco and tobacco products.
We are often consumed as we look at the Tom Cruise and Nicole Kidman characters—and I was sorry to hear today that they are splitting up. Non-smokers are less affected, but it is sometimes possible to watch a film all over again from the perspective of product placement, and it is extraordinary how often a big poster pops up as a backdrop to the superstars. Did they know that they would find themselves standing in front of a socking great advertisement for branded cigarettes? We do not know. Was it part of their agreement to stand in front of it? It is all very unclear and ill-defined. We want to help the Government to deal with this major loophole. There is no doubt that advertising can have a big impact on the young, who are highly susceptible to it. As drafted, however, I doubt whether the clause will be effective in practice.
5 pm
Amendment No. 39 is coupled with amendment No. 41, which deals with a different problem. It is designed to strike a balance on what is achievable in terms of constraining advertising through sponsorship agreements. Under clause 9(1):
``A person who is party to a sponsorship agreement is guilty of an offence''
if the purpose or effect of the sponsorship
``is to promote a tobacco product in the United Kingdom.''
That much is clear. What happens, though, when Bernie Ecclestone is sitting in his London headquarters agreeing to a deal with Marlboro to sponsor the Monaco grand prix? If photographs from that meeting appeared in United Kingdom magazines, would it be an offence under the clause? The new subsection makes it clear that sponsorship deals negotiated in the United Kingdom that do not relate to UK events are not covered by the rule when the photographs are incidental and not expressly published for the purpose of tobacco promotion.
Surely the Government do not want to drive international businesses out of the country for fear of accidentally committing this offence in connection with overseas events broadcast in the UK. Amendment No. 41 would prevent that. Formula 1 is international business and there is no getting away from it. There are 16 races in the year and if tobacco is to be banned only in this country, its impact on the image transfer from Formula 1 to tobacco—I accept the analysis that links them, particularly with respect to the young—will, frankly, be minimal. That the glamorous image of sport transfers to tobacco products is proven by market research, but—
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