Tobacco Advertising and Promotion Bill [Lords]

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Yvette Cooper: Amendment No. 1 lists several items that would not be capable of being a tobacco advertisement if the amendment were accepted. If the meaning of advertisement were circumscribed as set out under the amendment, there would be a risk of creating gaps in the advertising ban—gaps that could be serious major loopholes. I therefore ask the Committee to reject the amendment.

''Advertisement'' in the Bill carries, in effect, its natural common-sense meaning. That is usual in the law and in the drafting of Bills. The understanding of advertisement is clear in many such cases. I shall run through some examples.

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Mr. Wilshire: The Minister says that the meaning of ''advertisement'' is a common-sense matter and it has a natural meaning. What does she consider to be the natural meaning?

Yvette Cooper: Oppositions Members are keen to set out different forms of advertisement in the Bill. They say that that would make it clearer. Each time that they attempt to list forms of advertisement or themes that they do not describe as advertisements, they open the door for potential loopholes and ways in which the tobacco industry can get round the Bill. There is a serious point. It matters, because in plenty of other attempts to introduce Bills to control tobacco advertising, the bans have not been comprehensive and that has been a problem. Some of the research evidence suggests that that is the reason for some advertising bans being less effective than they could have been.

From the work done by the Health Select Committee, we know that the tobacco industry has already tried extensively to anticipate and find ways round potential bans and would do so again. It is therefore important that we introduce a comprehensive ban and then set out the exemptions.

Mr. Hunter rose—

Yvette Cooper: I shall try to respond to some of the points made by hon. Members and I will be happy then to take as many interventions as necessary.

For example, the view of the Government is that a tobacco product itself does not constitute an advertisement, neither do cigarette packets presented in the familiar way with the logo or colour scheme of a particular brand. However, it is conceivable that packets could be arranged in a shop window in a particular way—for example, Marlboro cigarettes in the shape of a racing car—that would create an image that amounts to an advertisement and would be understood by people to be an advertisement.

On letterheads and the like, the Bill is not aimed at the mischief of companies promoting their businesses by printing their names on letterheads. We have made that clear both here and in the other place. Common sense would not allow that to be regarded as an advertisement. However, if a letterhead were spread over the entire page—complete with the Joe Camel picture—and it just happened to drop out of the pages of a Sunday colour supplement, most people would regard that as an advertisement and not as the company going about its ordinary business with its letterhead.

We do not consider inscriptions such as ''tobacconist'' on the outside of shops to be an advertisement and, in many cases, the name of a company on the side of a van may not be an advertisement for a tobacco product. There is a difference between, for example ''Philip Morris. How is my driving?'' on the back of the van for the driver behind to read it, and ''Marlboro. How is my driving?'' spoken by a massive cowboy, cigarette in hand, emblazoned across the side of the van. Most people would regard that as an advertisement and it is right that the Bill should prevent it. It would be completely

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wrong to introduce a comprehensive tobacco advertisement ban and then say, ''Well, okay, it is all right if you want to put an advertisement on the side of your van, or have a massive advertisement on the front of your factory.'' To pick up the point that the hon. Member for Edinburgh, West (John Barrett) made, the issue would be whether or not the sign was what people would regard as a tobacco advertisement.

Mr. Wilshire: The Minister is making an excellent job of arguing why the Bill should define that a ''tobacco advertisement'' is an advertisement

    ''whose purpose is to promote a tobacco product''.

That much I can go along with, but is she not overlooking ''whose effect''? Any letterhead could be held by a court to have the effect of creating a tobacco advertisement, even if that was not the purpose. The hon. Lady has not tackled that matter .

Yvette Cooper: No. It is important that the Bill includes advertisements where the effect is to promote tobacco product. In the end, that is what we must take account of if we are trying to stop tobacco advertising and the promotion of products that kill.

Pete Wishart (North Tayside): Can the Minister explain how the advertisement for the ''Bacci Bus'' appeared in the Scottish edition of the Daily Mail? It offered cheap trips to buy cigarette products in European countries and bring them back. I assume that the Bill will not cover such an advertisement. Will the hon. Lady confirm whether that is the case?

Yvette Cooper: I am happy to look at that advertisement and consider it in more detail before advising the hon. Gentleman.

The Bill's overall approach is clear—to introduce a comprehensive ban and specify possible defences against it. It is right that defences should be specified later in the Bill, but to ensure that we have the most comprehensive ban possible, it is also right to set it up in this way at the beginning of the Bill.

The amendment would create loopholes. Indeed, discussion of the amendment and its consequences makes my case for me. Trying to ignore the natural meaning of the word and list examples of advertisements and of locations of advertisements inevitably opens up the possibility of not including all possible locations, or locations that could be used as advertisements but may not be at the moment. This is a sensible attempt to introduce a comprehensive ban.

The hon. Member for East Worthing and Shoreham mentioned packaging, which is subject to the EU directive on labelling. The size of health warnings is subject to separate discussion at European level and to the implementation of regulations to cover those warnings, so there is no question that warnings on tobacco packets would be reduced.

Tim Loughton: The more the Minister went on and the more my hon. Friends intervened, the more I became convinced that it is perfectly legitimate and right to make the amendment, or a form of it, to the Bill. The Government are trying to leave an open,

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undefined use of the word ''advertisement'' in the Bill, in order, in the Minister's own words, to try to close various loopholes.

Mr. Wilshire: I wonder whether my hon. Friend can help. I asked the Minister whether she could give us a definition of the natural meaning of the word ''advertisement''. As I did not receive an answer from her, I wonder whether he would try to come up with one, because we need to know what we are discussing.

Tim Loughton: That is a challenge. I have already given some examples of what constitutes an advertisement as defined in previous legislation. It seemed perfectly acceptable for those terms of advertisement to be added to legislation in 1968 and 1976, in our examples, but apparently not here.

The Minister said that such definitions would merely create serious gaps. What are those gaps? She gave a retort to my example of a name on the side of a van. It is entirely a grey area when the name ''Marlboro'', in whatever colours it may be presented, becomes an advertisement if portrayed on the side of a van. She is leaving that enormous gap open. If such advertisements are no longer allowed in Formula 1 racing, racing drivers will no longer have their cars plastered with ''Marlboro'', as well as ''Vodafone'' and various other things that will be legitimate. However, nothing would seem to stop the driver having a handful of cigarettes in his hand, unhealthy occupation though that would seem for a Formula 1 racing driver. Whether that would be allowed is a grey area, even if the name appeared in big letters all the way down the side of the cigarette.

The Minister is opening the Bill up to challenge by lawyers in court.

Mr. Hunter: My hon. Friend will have noticed that the Minister did not take up one of my points, which relates to paragraph (v) of the amendment—

    ''no communication of words in print, orally or by any other means in the context in which an advertisement the purpose of which is not intended''.

The Minister did not refer to that. Does my hon. Friend agree—

The Chairman: Order. I am not aware of a paragraph (v) in the amendment.

5.45 pm

Tim Loughton: My hon. Friend the Member for Basingstoke may be jumping ahead slightly, because the amendment that we are discussing goes up to (iv) in Roman numerals, and we should concentrate on those four things.

I turn to the other point that the Minister fails to address. She says that our amendment would merely open up serious gaps, and that clever lawyers could find loopholes. However, that ignores the fact that under the Henry VIII clause 7 alone—regardless of several other wide measures of regulation in the legislation—if such loopholes were to appear, the Secretary of State has powers to close many of them under regulations.

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The Minister is not defining the gaps that she alleges would open up—which is a false allegation anyway, because we are trying to close the potential for those gaps to appear. She is also ignoring the fact that she—or her right hon. Friend the Secretary of State—has serious powers to change the regulations, particularly as defined under new forms of electronic communication, so that such problems could be addressed.

Therefore, the Government have not made a good enough case against our amendment on this first outing. It has been put forward as a genuine attempt to be helpful; it is a defining amendment, which is intended to make it clearer to all concerned what will and will not be allowed if this legislation is passed, without serious recourse to the courts and expensive legal bills—where loopholes will feed on loopholes, if the matters under discussion are not given greater definition in the Bill.

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