Tobacco Advertising and Promotion Bill [Lords]

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The Chairman: Order. Under the terms of Sessional Order C, I now have to put the Question.

Mr. David Wilshire (Spelthorne): On a point of order, Mr. Amess. Some of us have not had an opportunity to speak to the motion and I believe that we should be entitled to do so.

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The Chairman: Under the terms of the order, the debate can take only 30 minutes.

Mr. Hunter: Further to that point of order, Mr. Amess. I was making a serious argument that has been accepted in two other European Union member states. I seek your guidance on whether you will, perhaps, exercise a degree of leniency at a later stage in our deliberations so that I can pursue my argument, because the Government have not answered it. It is essential to the democratic process that the Government answer it and I seek your guidance as to whether there will be an opportunity to pursue that argument.

The Chairman: The hon. Gentleman has made a fair point. If he seeks to catch my eye on an amendment, I am sure that, with his experience and ingenuity, he will be able to bring his remarks to order.

Mr. Wilshire: Further to that point of order, Mr. Amess. I would be grateful if you would explain to the Committee how we will get answers to our arguments as to why we need more time when the very attempt to get the information is being guillotined. What opportunity will there be for us to hold the Government to account on this very important issue?

The Chairman: I am afraid that the problem that the hon. Gentleman has articulated is entirely the effect of the terms of the order and there is nothing that I can do about it.

Mr. Hunter: Further to that point of order, Mr. Amess.

The Chairman: There are no further points of order.

It being half an hour after the commencement of proceedings on the motion, The Chairman, put the Question, pursuant to paragraph (9) of the Order of the House of 28 June 2001 relating to Programming Sub-Committees.

The Committee divided: Ayes 11, Noes 5.

Division No. 1]

Bailey, Mr. Adrian
Barrett, John
Cooper, Yvette
Fitzpatrick, Jim
Hall, Mr. Mike
Hopkins, Mr. Kelvin
Mallaber, Judy
Robertson, John
Taylor, David
Ward, Ms Claire
Wishart, Pete

Flook, Mr. Adrian
Hunter, Mr. Andrew
Loughton, Tim
Ruffley, Mr. David
Wilshire, Mr. David

Question accordingly agreed to.

Mr. Wilshire: On a point of order, Mr. Amess. I would have raised this matter if I had had a chance to speak on the programme resolution. I spent 39 sittings in a Committee Room similar to this one in November, December and January dealing with the Proceeds of Crime Bill. We had two Chairmen on those 39

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occasions—I welcome you and your co-Chairman, when he gets here, to the Chair—one did not mind us taking our jackets off, but the other got very stroppy if we did. Could we have some clarification as to what is permissible in this Committee? I will put my jacket on, if necessary.

The Chairman: I have not discussed this point with my co-Chairman. As far as I am concerned, if hon. Members wish to remove their jackets, that is entirely acceptable. Please be as comfortable as possible. I am sure that we shall draw to my co-Chairman's attention the remarks that have just been made.

I want to make a few preliminary announcements. Copies of the financial resolution relating to the Bill are available in the Room. I remind hon. Members that adequate notice should be given of amendments. As a general rule, my co-Chairman and I do not intend to call starred amendments. Finally, all Chairmen of Committees have been asked to remind members of Committees to switch off all electronic devices or, alternatively, throw them in the river Thames.

Clause 1

Meaning of ''tobacco advertisement'' and ''tobacco product''

Tim Loughton: I beg to move amendment No. 1, in page 1, line 5, after 'so', insert

    'provided that—

    (i) no tobacco product itself;

    (ii) no packaging of a tobacco product;

    (iii) no invoices, letterheads, price lists and other stationery ordinarily used in the course of a business to identify that business;

    (iv) no inscriptions, marks or signs exhibited on premises ordinarily used in the course of business to identify that business;

    shall be a tobacco advertisement,'.

This is a not an unfamiliar subject, but we have tabled the amendments in the interests of being helpful and making the Bill clearer. The amendment would add various definitions of what should not be seen to constitute an advertisement and, as such, would be prohibited under the Bill.

I gather that when their Lordships dealt with this subject they concentrated largely on the ''Yellow Pages''. I shall not repeat what was said, but following the advice given on his visit to the Committee by the hon. Member for Oxford, West and Abingdon (Dr. Harris) that we can refer back to proceedings in another place, I ask hon. Members who have an interest in the ''Yellow Pages'' to look up the report of the Committee there.

We must justify the Bill in terms of proportionality, or it will simply be challenged in the courts. The aim of the amendment is achieve clarity for the enforcement officers and agencies or retailers of tobacco products, the manufacturers of tobacco products and the producers of packaging and other paraphernalia that go with selling and presenting tobacco products. We have heard on previous occasions that the Government want to keep the wording in the Bill vague so that people do not later take advantage of loopholes. The Government are happy for definitions

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to be made in the courts. As I said earlier, that is a bad way to proceed. There must be much greater clarity in the Bill.

The ''Oxford English Dictionary'' definition of an advertisement is:

    ''a notice or announcement in a public medium promoting a product, service, or event or publicising a job vacancy.''

That is clear for posters, billboards and advertisements appearing in newspapers and magazines, but other aspects are open to question. In another House—just to show the hon. Member for Oxford, West and Abingdon who has disappeared again that we have considered the Lords' debates fully—Lord Filkin referred to a fast car advertisement, in which the driver, in order to persuade potential purchasers that it portrayed a luxurious lifestyle to which they would want to aspire, may be smoking a cigarette as he drives along, and it is clear that that product is part of the lifestyle that is being promoted. The advertisement is for the fast car. Does it apply to the cigarette or other tobacco product being smoked, chewed, inhaled or whatever else one does with a tobacco product in the advertisement?

In another House, Lord Filkin said:

    ''If such an advertisement is proved to have the effect of promoting a tobacco product, it is right that it should be caught by the e-ban. However, the onus would be on the prosecution to prove beyond doubt that the advertisement had that effect.—[Official Report, House of Lords, 16 November 2001; Vol. 628, c. 801-2.]

I should be interested to hear from the Minister how the prosecution would be able to prove beyond reasonable doubt that such an advertisement had the effect of promoting the tobacco product rather than the Ferrari, Porsche or whatever fast car it featured. Therefore, we want better definitions of what constitutes an advertisement.

Better definitions exist, and we need only look at previous legislation for examples. The Consumer Credit Act 1974 defines an advertisement as something that

    ''includes every form of advertising, whether in a publication, by television or radio, by display of notices, signs, labels, showcards or goods, by distribution of samples, circulars, catalogues, price lists or other material, by exhibition of pictures, models or films, or in any other way, and references to the publishing of advertisements shall be construed accordingly.''

That definition of 28 years ago is rather more helpful than the lack of a definition in the Bill, which could be subject to challenge. There is also a better definition in the Gaming Act 1968 and the Medicines Act 1968.

The amendment would state what should be obvious in the Bill but is not and would not be to an opportunist lawyer who wanted to mount a challenge in court on behalf of a client. The Bill will surely open up such a challenge. We want to exclude the tobacco product itself--for example, a cigarette--and the

    ''packaging of a tobacco product . . . invoices, letterheads, price lists and other stationery ordinarily used in the course of a business to identify that business . . . inscriptions, marks or signs exhibited on premises ordinarily used in the course of business to identify that business''

from constituting a tobacco advertisement.That is common sense and you and I, Mr. Amess, as sensible Members would accept that. I cannot see that the

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terms of the Bill and its penalties would be diluted by defining closely what the advertisement should include.

I paid particular attention to the tobacco counter at Safeway in Worthing last week. Some of the packaging that bundled the 200 Super Kings and some of the display shelf could constitute an advertisement and a challenge could be mounted along those lines when, patently, they are not intended as such.

What will happen to the existing restrictions under the voluntary agreement when the Bill is enacted, if it is passed by the House? What will be able to be portrayed on packets of cigarettes--they must include the Government health warning--and the packaging? How prominent will the Government health warning have to be? I for one want an even more prominent health warning.

What about invoices and letterheads that are used as a legitimate part of the business of tobacco retailers and those involved in mail order retailing of tobacco products? If they replicate the appearance of cigarette packets or packaging, they could constitute an advertisement, although they are patently not intended to do so if they are used in the normal conduct of business. There could be problems with signs on premises and we shall discuss that later when the Minister gives us more details, but some of the signs replicate what the packet looks like.

A question also arises about the vehicles that deliver these foul objects. They often have signs on the sides stating what the brand is and that may be taken as constituting an advert. A Marlboro delivery van could state on the back, ''Marlboro--How am I driving? Ring 0800'' and so on. Would that constitute an advertisement? Such matters should be more closely defined.

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