Tobacco Advertising and Promotion Bill

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Mrs. Spelman: I am pleased to hear the Minister's relaxed attitude towards current displays. People who are worried that a legitimate aspect of their current business might fall foul of the Bill will welcome that. I share the Minister's concern about loopholes that would allow tobacco products to be displayed together with toys. It is in everyone's interest to prevent that. We probed the Minister earlier on what constituted an advertisement as opposed to a display. Both the amendment and the new clause are helpful in clarifying that. People affected by the Bill will read those provisions carefully, but the detailed regulations will provide more specific guidance, so I am glad that they will be subject to positive resolution.

The Minister's relaxed attitude suggests that she views the regulations as a reserve power to deal with an abuse of what is permitted rather than as a proactive measure to be invoked as soon as the law comes into force, requiring retail outlets to adapt their existing practices to conform to it.

Let me return to display and advertisement. Given that a more explicit explanation is to be given to the term ``display'', might the Minister, on reflection, consider providing a closer definition of ``advertisement''? I think that it is possible to provide guidance to businesses in that respect.

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I wish to ask the Minister some questions about the publication of draft regulations for consultation. I believe that a promise has been made several times that draft regulations for consultation would be forthcoming on point-of-sale and advertising displays. The Government said, first in relation to their intention to produce primary legislation and later as part of their plans to implement the now-annulled European directive, that they would produce regulations for consultation. Those encouraging noises have been made to the industry for almost four years.

It would have been helpful if the consultation and drafting of the regulations had taken place before we debated the Bill. I am struck by the way in which we seem to do things the wrong way round. We agree the legislative framework in an empty-box structure and are promised regulations in due course and consultation either simultaneously or some time later. I should have thought that consulting first and producing draft regulations would have been helpful ways round the question of displays.

My final point is that the Minister said that there may or may not be regulations, which provide for the meaning of ``place''. We had a problem when we debated a previous clause with the description of a specialist tobacconist as a shop. We debated how that might constrain the effectiveness of the Bill, since not all specialist tobacconists have shops. I would be interested if the Minister would tighten up the definition and say specifically what she means by ``place''.

We are defining some things precisely while leaving others open. It will be important to retailers to know specifically what ``place'' means and how they need to adapt present practices to the new definitions in forthcoming regulations. Clarification of the word ``display'' has proved helpful because the absence of a clear definition would lay us open to a situation in which a retailer might feel, in the absence of a display, that the safest thing to do would be to put all his products under the counter. I know that some people take the view that that would be a good thing because it would remove temptation from people's way, but one problem of removing the products in such a draconian way is that it drives sales under cover.

We already have a significant problem in the UK with a high proportion of illegally imported tobacco, sold not under the counter, but clandestinely from the back of a white van. We must be clear that it will be legitimate to put tobacco products on view where the trade is carried out in compliance with the Bill. That is an important distinction to make. The Bill is likely to be counter-productive without the clarification that the Minister says will be forthcoming in regulations. It is desirable for the myriad retail outlets for tobacco products to be quite clear about how much of the product they can put on view.

At present, displays containing a significant number of packets are usually behind the till, in view. I hope that I understand correctly from the Minister that she is relaxed about those displays. The effect of altering the present displays would undoubtedly be to draw attention to the changes in the law, but placing the products under the counter would have an undesirable impact. As far as possible, we want to ensure that legitimate trade in tobacco products is allowed, notwithstanding their public health risk. It is desirable to encourage people to keep their habit within the law.

The consumption of illegal tobacco represents 25 per cent. of all tobacco consumption, and the figure is almost as high as 50 per cent. in the north-east. We are fighting a losing battle; people are increasingly tempted to go for the under-the-counter products or products out of a white van rather than legitimate ones. Clarification of what is a display is essential to supporting the legitimate business of retailing tobacco products. I hope that the new clause and the regulations will be helpful in that respect.

Mr. Ian Bruce: Let me deal with one of the elements of display and how that might affect the way in which people retail tobacco. I would like the Minister's comments on a specific practice that could be extended. In duty free shops, tobacco shops and clothing shops, it is quite normal that when one purchases a large quantity of a product, one is given a carrier bag with a logo on it. It seems to me that if the carrier bag has advertising on it, it is a very effective way of giving out something at point of sale that will end up as an advertisement trailed along the high street by people going about their business. Will the Minister consider that? The same applies, of course, to a lot of other branded goods.

Something that is purchased that has a logo on it—within a tobacco-selling area that complies with the regulations, which we have not yet seen, about how tobacco products should be displayed— and is then taken from that place becomes a moving advertisement. I have here a copy of the House of Commons logo. The portcullis is the logo that appears on House of Commons branded cigarettes. We have other branded products, including mineral water and a teddy bear. The brand is the same as on our branded cigarettes.

We understand how the sale of such branded products might be affected by the provisions on point of sale. A product with a Silk Cut or Marlboro brand could be on sale within a tobacconist's shop, where it might well be legal to sell it because it is not being advertised outside the shop. Once it is in the hands of the individual who buys it, the branded product is not caught.

The other element in new clause 3 to which I wanted to refer is the use of the words ``on a website''. We all have to try and get our heads around something that exists in the virtual world. Several Acts, including the Computer Misuse Act 1990, the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Fraud) Act 1997, have attempted to define in law something that exists as electrons, but not as something that a person can pick up and walk away with. In the past, a person could not steal or alter those electrons without their being defined as real things.

I have a problem with the way in which the Minister uses the phrase ``on a website''. New clause 3 says:

    ``A person who in the course of a business displays tobacco products or causes them to be displayed...on a website where tobacco products are offered for sale is guilty of an offence''

unless he complies with the regulations. Under certain regulations, it is legal to have such products on the website. Let us assume that we can say that the website exists. It does not exist where a person is looking at and is affected by the advertisement. It may be legal for the website to exist, but not for it to be on a computer in someone's home or office. It is difficult, but one is attempting to regulate the advertisement at the point at which it is read, as opposed to in a virtual world.

I have given an example of the situation that might arise, particularly in relation to an overseas operator but also with a UK operator, unless the regulations are tightly drawn. Advertisements appear on screens at airports and various places. One could walk into an airport where advertisements were being clicked over in electronic form. If they have come from a website as opposed to a computer sitting underneath the machine, they could be legal and get round all the regulations that the Minister proposes to introduce.

We have established that people can have access to such information where they buy cigarettes. However, the Bill says that if people are not in a place where they can buy cigarettes, they should not be able to see advertisements for them. Advertisements should not be fired at them. If the information on a screen at a supermarket, airport or wherever comes from a website and tells people how they can purchase the cigarettes and how much they cost, and if cigarettes can be purchased from the website, the regulations designed to prevent that from happening outside a tobacco-selling environment will have been overcome.

Mr. Luff: Is not the point that the Government should at least define what they mean by ``website''? Would a display that had been developed in Internet Explorer software but was not accessed from a remote computer count as a website? I am not aware of occasions in law when the term ``website'' has been used and defined, but perhaps the Government are. To use it in an undefined way leaves a number of loopholes in the legislation, which my hon. Friend is helpfully illuminating.

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Prepared 8 February 2001