Tobacco Advertising and Promotion Bill [Lords]

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Mr. Ruffley: Would my hon. Friend care to speculate on why the Government chose a wide definition instead of going for something like the definition in the Consumer Credit Act 1974?

5.15 pm

Tim Loughton: My hon. Friend asks a fair question. In the past, it has been suggested that the Government have refrained from drawing a tight definition because they believe that doing so would create loopholes that clever lawyers could exploit. A stronger case, which I am trying to make, is that not giving definitions would make many more potential loopholes that clever lawyers, of whom there are many—expensive ones at that—should want to take to court. It is not a legitimate business of Government to leave the matter to the courts, as the Government appear to want to do, by not defining more closely in the Bill exactly what is or is not allowed.

The amendment is helpful. It is a good base from which we can define what is and is not allowed, what the penalties should be and what exemptions should apply to certain types of business or products. I hope that the Minister will accept it in the way in which it is

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intended, which is to be helpful and get us to a much better defined Bill. Whether or not we agree it, everybody will know exactly where they stand.

Mr. Wilshire: Before I make my first contribution to the debate, I draw the Committee's attention to the Register of Members' Interests, in which members will find no entry against my name in respect of tobacco. It is important to make it clear that if I go out of the Room from time to time, it is not to have a quick puff in the Corridor. On the other hand, I also draw the Committee's attention to the fact that I allowed the pro-tobacco lobby to buy me lunch, and I mention that in case the anti-tobacco lobby would like to take me out to lunch. I make that point because if I can be bought for a lunch I am not worth buying. Nevertheless, it is important that the Committee knows my interests, or lack of them.

My hon. Friend the Member for Basingstoke (Mr. Hunter) said that your presence would raise the quality of the debate, Mr. Amess. After you have heard one or two of my contributions you will know that achieving that will not be difficult.

My hon. Friend the Member for East Worthing and Shoreham said that this is an issue with which certain people are familiar. Well, I am not familiar with it. I was not present when it was discussed in the House of Lords and I was not present in any Committee sitting in the last Parliament in which it was discussed. I therefore make no apology for letting the Committee know that when there are votes I intend to cast my vote on the arguments that I hear in Committee, and not on the basis of what somebody might have said a long time ago, which is an approach that demeans democracy. If Liberal Democrat Members are prepared to say that it is does not really matter whether we discuss the issue now because it has been discussed before, that is their problem. They may not want to consider the Bill properly, but I do.

The amendment goes to the heart of what is an advertisement. If we are going to pass legislation that says that advertisements are not permissible, we owe it to our constituents to make it absolutely clear what we mean by an advertisement. It is not true to suggest that an all-embracing definition will be adequate to close loopholes and it flies in the face of common sense not to quantify the generalised statement in the Bill. When we scrutinise the Bill, we have to apply common sense rather then letting the lawyers run amok on our behalf. Sooner or later, the issue is going to end up in the courts. In scrutinising the Bill, it will be important to make sure that it is as clear as possible and that we anticipate legal challenges that may be mounted, which will stop us putting endless amounts of money into lawyers' pockets. To allow the Committee to know where I am coming from, my son is a barrister and I am speaking against the family interest when I say that we should make sure that we do not give lawyers work when we can avoid doing so. It is important that we go down this route with carefully scrutiny of what we mean when we refer to an ''advert.''

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I accept the first part of the clause, which states that an advert is when the purpose is to advertise tobacco. That is fine. Whatever the ''Oxford English Dictionary'', clever lawyers or Committee members may say, I have no difficulty with somebody doing something with an intent to sell or promote if I can see that it is an advert; I am content that the advert should be there and it will be for lawyers to prove purpose and intent. There will be a defence in law for a person to claim that he or she did not intend to do it and that it is not their fault. That might be a loophole, but I am not a lawyer.

What is wrong is that the clause refers to something that happens or that is produced that has the ''effect'' of promoting tobacco. That wording is not adequate and it will be challenged time and again. Let us take what may seem like a trivial example. My understanding of cigarettes is that the brand name is often printed on the paper. It would be perfectly possible to argue that the reason why one buys cigarette A over cigarette B is because of the smell and that putting a name on it may be trying to promote it.

I should like to hear what the Minister has to say about packaging, and not only that of the cigarette, although the cigarette paper is in a sense packaging rather than a tobacco product. The amendment refers to ''no tobacco product itself''. We could have a long argument over whether just the tobacco, or the tobacco plus the immediate wrapper, constituted the tobacco product. If we are not careful, lawyers will get stuck into that question in court.

The box into which the product goes is clearly going to cause problems. I get the impression that in supermarkets in particular cigarettes are put so far out of the way of shoplifters that one must ask for them—I would not know because I do not buy the things. Supermarkets could have shelves full of white boxes with nothing on them. When one travels with airlines and visits duty free shops, there is an opportunity to take from the shelf, put in the basket and take to the till. It would be crazy for those shops to have rows and rows of 200 packs in white boxes because of legislation. How will a person know what they are taking off the shelf?

The amendment is necessary common sense for people who, without any persuasion from the advertising industry, decide that they want to buy cigarettes, cigars, tobacco or whatever. There must be some means of identification, particularly for self-service. For such packaging to be caught as an advertisement by the legislation is wrong. The Government should not leave the issue to a nudge and a wink, or say that they will not bother with it because it can be left to common sense. We must set it down to achieve some sort of clarity.

The amendment refers to

    ''invoices, letterheads, price lists and other stationery ordinarily used in the course of a business to identify that business''.

The argument behind the clause is that one cannot exempt even invoices. Were I a tobacco wholesaler sending out invoices, it would do little good to send you a piece of paper, Mr. Amess, that stated that you owed me £5,000 for cigarettes if I could not state the

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company's name on it. How would you know to whom to send the cheque? Again, common sense must apply to such matters. The amendment mentions

    ''inscriptions, marks or signs exhibited on premises''.

Are we assuming that all smokers are psychic and that I could wander down the high street and just say, ''Ah, I can buy cigarettes in there''? According to the Government, anything put on the outside of a shop could be deemed to be an advertisement under the clause. For all those reasons, the amendment would not undermine what the Government seek to achieve.

We debated on Second Reading the whole range of civil rights and human rights issues and people's ability to smoke and know what they are doing. You would rule me out of order, Mr. Amess, should I attempt to raise those again. However, even if we accept that the Government have a majority and will get their way with the Bill, whatever we might think of it, I still hope that the Minister will indicate a determination to apply common sense to such issues as the amendment raises, even in a Bill that I think is flawed in principle.

John Barrett (Edinburgh, West): Hon. Members who have spoken have raised various matters, but limited points have been made on clause 1. For example, the advertising of cigarettes in white boxes has been mentioned but, no doubt, a company could produce a cigarette entitled ''White Box'', so that large numbers of white boxes in any supermarket would be advertising. There has been constant reference to clever lawyers finding loopholes in the Bill, but clever lawyers will always find loopholes. On clause 1, the references to advertising exclusions deal with several of the issues raised. For example, displays are dealt with in the Bill.

I should like the Minister to respond to the part of the amendment that refers to

    ''no inscriptions . . . on premises ordinarily used in the course of business''.

That point needs addressing in relation to premises where cigarettes are manufactured. For example, if a large Benson and Hedges factory were plastered with very large signs, including some on the roof that aircraft could see, would that be promotion of the product? That is the only issue raised up until now that I think that the Minister need clarify.

Mr. Hunter: I shall be brief as most of the salient points have been covered. I should like to emphasise that this is a very serious amendment. It gets to the heart of the Bill. There is an onus on the Government to offer an explanation that was denied in the other place and that was also denied during the passage of the previous Government Bill. Two previous Labour Governments and the previous Conservative Government, dealing with legislation on advertising, felt a responsibility—a sense that they were beholden—to offer a definition of advertising. Those respective Governments, starting with Harold Wilson's in 1968, going through to 1974 and on to the 1980s and early 1990s, did that because they accepted the principle that, the closer the definition, the fewer

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the loopholes. This Bill, endorsed by the Government, has actually turned that principle on its head, arguing that to define would be to create loopholes.

I approach this debate with an open mind, but I am dumbfounded, in the absence of an argument from the Government, at the idea that a lack of definition can ever result in fewer loopholes. It seems to defy logic to argue that.

5.30 pm

If we look at the 1974 Act, mentioned by my hon. Friend the Member for East Worthing and Shoreham, the Gaming Act 1968, the Medicines Act 1968, the Insurance Companies Act 1982, the Financial Services Act 1986 and the Food Safety Act 1990, we find that successive Governments considered that a definition of advertising would reduce the likelihood of loopholes, not create them. I hope that the Minister can demonstrate to the Committee why the experience of the best part of a little more than 30 years should now be overturned and why we should accept that a lack of definition is in the interests of the enforcement of the Bill.

I understand the concept of direct tobacco advertisements and the Committee will not have problems with posters, billboards, press advertising and so on. That is the direct promotion of a particular brand. In the other place, some consideration was given to what could be called indirect advertising—an advertisement that has the purpose or effect of promoting a tobacco product, when it is ostensibly for another product. On behalf of the Government in another place, Lord Filkin chose as an example

    an advertisement for something else—perhaps a fast car in which the driver is seen smoking an identifiable brand of cigarette as he puts his foot on the accelerator.—[Official Report, House of Lords, 16 November 2001; Vol. 628, c. 801.]

How on earth will the prosecution in a court of law be able to prove beyond reasonable doubt that such an advertisement had the effect of promoting the tobacco product rather than the car? I ask that because I genuinely do not know how that can be determined fairly or reasonably in a court. The clause is creating a paradise for lawyers because the issue of whether an advertisement is indirectly promoting a tobacco product will fill the coffers of many law companies. Is it really sensible to include in the Bill an open, undefined use of the term ''advertisement''? What is meant by an advertisement should be more tightly defined in the Bill.

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