Sandra Gidley: The Minister is well intentioned, but alarm bells start ringing when I hear the words we have good practice. I contend that there is a best practice for almost everything in the NHSworld leading in many cases. Since joining the Select Committee on Health, I have travelled to various places only to find that there is something just as good or better on our doorstep. In the past the NHS has been spectacularly bad at spreading that best practice; I wish the Minister success in improving that. Were all trusts to adopt best practice in everything, we would have a health service that was second to none.
Mr. Mike O'Brien: One of the key tools we have to spread best practice in the NHS are the quality accounts in this Bill. Ensuring that we spread information and
Sandra Gidley: My concern is that many of the bodies he has announced are fairly new. I welcome the fact that the Department is working with the SHAs and the trusts, butagain there is a health warningthey need to ensure that best practice is more widely implemented. It would only be fair to allow some of that a chance to bed in, to actually have an effect. I hope that, with the coming financial pressures, this is not one of those things that is quietly shunted to the sidelines. For many people, this is fundamental to the optimal use of the health service. I shall be watching closely, so I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 10
(1) The Secretary of State may make regulations imposing such requirements as he considers necessary prohibiting or restricting the sale or supply of tobacco products otherwise than in packages or packaging which comply with the regulations.
(2) The regulations made by the Secretary of State in subsection (1) may impose such requirements the Secretary of State considers necessary or expedient with respect to any one or more of the following particulars
(a) the colour of the packages or packaging;
(b) the shape and material of the packages or packaging;
(c) distinctive marks displayed on the packages or packaging;
(d) trade marks or registered trade marks displayed on the packages or packaging;
(e) the labelling in respect of packages, packaging or tobacco products, or associated with packages, packaging or tobacco products;
(f) the contents inside the packages or packaging, in addition to tobacco products; and
(g) any other particulars as may be prescribed by the Secretary of State.
(3) Regulations made under this section may provide that packages or packaging of any such description, or falling within any such class, as may be specified in the regulations shall not, except in such circumstances (if any) as may be so specified, be of any such colour or shape, or display any such mark or trade mark, or any other particulars as may be so specified.
(4) No person shall, in the course of a business carried on by him, sell or supply, or have in his possession for the sale or supply, any tobacco product, package, or packaging in such circumstances as to contravene any requirements imposed by regulations under this section which are applicable to that tobacco product, package, or packaging.
(5) Any regulations made under this section may provide that any person who contravenes the regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding a level on the standard scale specified in regulations made by the Secretary of State.
(6) Before making any regulations under this section, the Secretary of State shall consult such persons as are likely to him to be substantially affected by those regulations.
(7) For the purposes of this Act
trade mark and registered trade mark shall have the same meaning as in section 1 of the Trade Marks Act 1994;
package shall mean the packet, container, wrapping or other receptacle which contains or is to contain the tobacco products;
packaging shall mean all products made of any material to be used for the containment, protection, handling, transporting, delivery, sale and presentation of the packages;
tobacco products shall include cigarettes, cigars and any other product containing tobacco and intended for oral or nasal use and smoking mixtures intended as a substitute for tobacco, and the expression cigarettes includes cut tobacco rolled up in paper, tobacco leaf, or other material in such form as to be capable of immediate use for smoking, and cigarette papers, tubes and filters.
(8) Regulations made by the Secretary of State under this section
(a) may make different provision for different cases; and
(b) may contain such incidental supplemental, consequential and transitional provision as the Secretary of State thinks fit.
(9) The powers of the Secretary of State under this subsection shall be exercisable by statutory instrument.
(10) No regulations under this section shall be made unless a draft has been laid before, and approved by a resolution of, both Houses of Parliament..(Sandra Gidley.)
Brought up, and read the First time.
The new clause has effectively been referred to as a plain packaging amendment; there were attempts at this in the other place. The clause provides the Secretary of State with powers to make regulations to restrict the use of branding, including the shape and colour of tobacco products and their packaging.
We have introduced this new clause because we have a slight problem with the Government proposals that were discussed on Tuesday afternoon, which sought to remove all tobacco products from display. We are talking about an adult product that should be sold only to adults. The evidence base for the effect on children is limited, which is a shame because the Bill has been touted as introducing measures to reduce smoking by children. There is a need to curtail further the impact of cigarettes; this new clause seeks to do that.
The pack would retain the brand name of the product, which would be displayed in a standard font, the volume of the product, for example 20 cigarettes, and features required by statute, including health warnings, tar and nicotine yields and the duty stamp. Committee members have been provided with examples of plain packs. Tobacco manufacturers have suggested that these would be easy to forge, but it seems to me, having seen forged packs, that existing packs are also easy to forge. The problem of smuggling needs to be resolved in a completely different way; there are ways that that can be achieved.
Mike Penning: European legislation allows the free movement of products from other European countries to this one. We all know about the border problems with smuggling and other issues. If we do this on our own without our European partners, European legislation would still allow those products to be in this country. How will that be? We would have products sold in this country that would be in plain packaging, while everything else that is floating around would be in other packaging. How is that going to balance out? Is it legal?
Sandra Gidley: The tobacco manufacturers would say that it is not legal. There is another body of opinion that says it is. That is probably a lawyers charterI do not know; it is up to the Minister to decide all that. Both the lawyers have gone, so perhaps we can make some progress.
The new clause states:
Before making any regulations...the Secretary of State shall consult
those affected. The regulations would be subject to affirmative resolution.
It is worth explaining why the measures are necessary. Currently, branded packaging constitutes a highly effective form of tobacco advertising. I had the dubious pleasure of serving on the Committee discussing the Tobacco Advertising and Promotion Act 2002, which was my first ever Bill. I was totally dismayed that it took us all day to define a tobacco productthat was baptism by boredom, I think, rather than by fire. Certainly, the intention of that Act was to try to prevent those visual triggers and icons, and the ways that products could be used and sold, from subtly reinforcing certain brand images.
As a result of the 2002 Act, all the emphasis has gone to tobacco display. Some of the display material produced by the large tobacco manufacturers is not in the spirit of that Act. The boundaries have been pushed so far that there are some large, flashy displays at point of sale. Although measures in the Bill seek to remove everything completely, there may be a compromise in restricting what is on display. It has been shown by numerous people that tobacco branding is particularly potent in the recruitment of young people into smoking habits. Design features, including colour coding, give them misleading and illegal impressions that one type of cigarette is less harmful than another. In fact, they are all fairly, or completely, harmful.
The new clause seeks to make plain packaging mandatory for all tobacco products, removing all branding and leaving the health warnings and the name of the product. Current branded packaging is a form of advertising and misleads smokers about the safety of the product.
Since the advertising ban, the pack has acquired even greater importance as an advertising tool. The tobacco industry uses it to recruit smokers to replace those who have quit or died. The industry saw early on that the pack would acquire even greater importance. In 1991, some time before the ban, the trade magazine Tobacco International wrote that
the traditional cigarette pack will not be good enough for the selling job it will have to do. If it cannot be shown and marketed in advertising as before, it must carry the whole message itself.
Many similar comments are available.
In a speech much quoted in the Lords, the global brand director of Imperial Tobacco boasted that it had used pack design to undermine the advertisement ban and increase sales. I quote:
The effect was very positive. Already the number 1 brand, our share grew by over 0.4 per cent. during this periodthat may not sound a lot but it was worth over £60 million in additional turnover and a significant profit improvement. Often in marketing, it is difficult to isolate the effects of individual parts of the mix. But in this case, because the UK had become a dark market, the pack design was the only part of the mix that was changed, and therefore we knew the cause and effect.
Branding is especially effective when it comes to young people. The great majority of smokers start smoking before they are 18 and the longer they smoke, the harder they find it to quit. Research conducted by the university of Nottingham has shown that young people found branded packs much more attractive than plain packs, demonstrating the appeal of packaging and branding independent of the appeal of the tobacco product itself. There is much anecdotal evidence that if young women in particular see a glitzy pack they want one. It is almost like an accessory. Professor Gerard Hastings from the Institute for Social Marketing describes cigarettes as,
badge products which are conspicuously consumed, particularly by the young, to make public statements about the users self-image and identity.
With that goes the design of the pack.
Branding can also be used to mislead smokers about the relative safety of brands. The use of colours or livery can mislead smokers into thinking that their favoured brand or brand variant is a safer product than others. Some have shades of a colour so that the strongest cigarettes are darker. People smoking cigarettes from a lighter coloured pack will think they are less dangerous when in fact they are just as dangerous in the long run.
Amendments were tabled and debated at Committee and on Report in another place. They have been reintroduced here because there is new evidence, including research that stresses concerns raised in another place, which shows that the tobacco industry has advanced legal arguments knowing them to be unsound, including arguments promoted to Members of this House. The Bill has also been amended in response to Lord Stoddarts objection at Committee stage that it should provide for an affirmative instrument. Greater clarity has been provided by the Minister on the forthcoming tobacco control strategy, which could include a planned review of the evidence.
Committee stage in another place coincided with the world conference on tobacco and health. On the very day that Members debated plain packs, new research was being presented at that conference. The new research was on previously secret internal tobacco industry documents that showed that not only are industry claims about international law incorrect, but tobacco industry advocates knew that to be so at the time they made the claims. The study confirms that.
Mr. Mike O'Brien: The hon. Lady is taking us through a lot of background material, much of which is understood by colleagues on the Committeeindeed, much of it is shared. Would it be helpful if my hon. Friend the Minister were to set out the Governments position on this, because it would enable her to focus on the key issue that she wants to remedy rather than having a general canter through all the issues?
Sandra Gidley: I do not think I was cantering. I appreciate we have limited time left, but this is important. While the Committee may feel it is fully conversant with all the detail because we have all been bombarded with information, nevertheless there are those outside who have not necessarily seen everything. I can assure the Minister that I could be speaking at greater length. [Interruption.] The hon. Member for Eddisbury casts aspersions by suggesting that people will not read reports
It might be worth moving on to a summary of the arguments against plain packaging that were made in another place. Some raised concerns that health warnings would be removed. The amendment does not do that. It is clear that the legal warnings that currently stand will continue. There were concerns that information on nicotine and tar levels, required by law, might not be on the packs, yet the amendment does not alter that requirement. There were also concerns that the colour on the packs is required by Government, but I am not sure why that was such a concern. I have a concern about the white packs that have been sent round, because white often looks like a healthy colour. Brown might be a better colourto match the colour of ones lungs after smoking such productsbut it is worth mentioning that the plain pack will enhance the prominence of the health warnings.
It has been said that plain packaging would not reduce youth smoking. It is fair to say that it is not possible to prove that a change to plain packaging would reduce youth smokingit would need to be trialledbut it can be demonstrated that branded packaging increases the appeal to young people, and that is what the industry does all the time with its constant renewal, the designer packs and the collectors item packs, which are all designed to get people buying more packs of cigarettes. I do not think they care whether the cigarettes are smoked as long as the money is handed over.
Another concern is that plain packs constitute an infringement of trademark. According to Sir Richard Buxton:
The grant of trademark confers the right to stop others using that mark. It does not confer on the trademark owner a right to use that mark in all circumstances and irrespective of public policy considerations.
Some complain that plain packs are an infringement of the trade-related aspects of intellectual property rights agreement. The industry was advised by BAT's head of corporate affairs, David Bacon:
Current conventions and treaties offer little protection.
Others raised concerns that there would be an
unlawful interference with the human right, established by the European Court of Human Rights, to free speech between the manufacturer and the consumer of a product.
EU directives already provide for restricting misleading branding and the insertion of health warnings on tobacco packaging. In his formal opinion, the former appeal judge, Sir Richard Buxton, asserted:
In my view any court would take very seriously the views of health authorities that see plain packaging as an effective and necessary means to a public health end
I would not expect an English court, or for that matter the Strasbourg Court, to get into arguments with the British Government about the lawfulness of its adoption of advice recommended by the WHO and given to it by its Chief Medical Officer.
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