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Session 2009 - 10
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Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: Sir Nicholas Winterton
Bailey, Mr. Adrian (West Bromwich, West) (Lab/Co-op)
Barron, Mr. Kevin (Rother Valley) (Lab)
Creagh, Mary (Wakefield) (Lab)
Davies, Philip (Shipley) (Con)
Dobson, Frank (Holborn and St. Pancras) (Lab)
Lamb, Norman (North Norfolk) (LD)
Merron, Gillian (Minister of State, Department of Health)
Moffatt, Laura (Crawley) (Lab)
Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
Penning, Mike (Hemel Hempstead) (Con)
Pritchard, Mark (The Wrekin) (Con)
Pugh, Dr. John (Southport) (LD)
Turner, Mr. Andrew (Isle of Wight) (Con)
Waltho, Lynda (Stourbridge) (Lab)
Wicks, Malcolm (Croydon, North) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Simon Patrick, Committee Clerk
† attended the Committee

Second Delegated Legislation Committee

Monday 8 March 2010

[Sir Nicholas Winterton in the Chair]

Draft Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010
4.30 pm
The Minister of State, Department of Health (Gillian Merron): I beg to move,
That the Committee has considered the draft Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010.
The Chair: With this it will be convenient to consider the draft Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010.
Gillian Merron: May I say, Sir Nicholas, what a pleasure it is to serve under your chairmanship again this afternoon?
The instruments meet our commitment to regulate both tobacco displays and the sale of tobacco from vending machines, and they follow the will of Parliament in that regard. Four sets of regulations were required to implement the new provisions under the Health Act 2009, two of which are before us today, and two of which were made and laid under the negative resolution procedure on 2 March 2010. A public consultation on all four sets of proposed regulations ran until 4 January 2010. The Government’s response to and report on the consultations were published on the Department of Health’s website on 26 February. All responses were considered carefully, and they informed the drafting of the final regulations. We have also considered all available legal options.
The first set of regulations deals with tobacco vending machines. Regulation 1 specifies the timing and title of the regulations. Regulation 2 prohibits the sale of tobacco from an automatic machine. It specifies that the person who controls or manages the premises where the automatic machine is located shall be liable and also defines what is meant by premises. We have carefully considered the impact on businesses and have taken into account consultation responses from them. The regulations do not commence until 1 October 2011, thus giving businesses time to prepare—including by diversifying into selling different non-tobacco products from vending machines, if they so wish.
The regulations give us the power to sever one of the main supply lines by which tobacco reaches children. Studies show that, in 2008, 12 per cent. of regular smokers aged 11 to 15 used vending machines as a regular source of cigarettes. Evidence from local trading standards officers shows that more than half of test purchases during 2008-09 resulted in a sale to a child. They also found that one in four vending machines were not located in a supervised area. The evidence is clear. The voluntary code of practice to prevent children from buying tobacco from vending machines is still not working effectively. It remains an inadequate safeguard against under-age sales and undermines efforts by adults to quit.
Mike Penning (Hemel Hempstead) (Con): I am interested in the sudden conversion and the fact that such evidence is here. It was not available when the Health Bill was discussed in Committee, when I pressed for a debate in which we could push for others ways to preclude young people from obtaining tobacco from vending machines. The Minister said nothing at the time. Nothing at all was said until we considered the Bill on Report, when an amendment was taken at 8 o’clock in the evening and we voted on it less than 40 minutes later. From where has the evidence suddenly come? Why did the Government not bring this forward when we discussed the Health Bill in Committee?
Gillian Merron: I hope that the Committee is glad that the Government took the temperature of the House and allowed its will to be tested. Its will was clear, and we listened to it and acted. Members of the Committee will have their own views about whether that was the right thing to do, but Parliament made clear what it wanted from the Bill, so we have pursued that course.
Mike Penning: The Minister refers to the will of the House. The Conservatives and most Opposition Members had a free vote that evening. Will the Government allow their Members a free vote in Committee today?
Gillian Merron: The will of the Government is clear, which is to support young children and to support those who want to quit smoking. In all such things, voting is a matter for the Whips. The hon. Gentleman—[Interruption.]
The Chair: Order. The Minister is on her feet and addressing the Committee.
Gillian Merron: The hon. Member for Hemel Hempstead will certainly find unanimity among Labour Members, and it will be interesting to see whether Opposition Members will act to protect young people from taking up smoking and to support those who wish to quit—time will tell.
Halting the damage caused by smoking means tackling desirability as well as availability. The second set of regulations, on price lists, is one part of the package of regulations flowing from the prohibition of tobacco displays under new section 7A of the Tobacco Advertising and Promotion Act 2002. The regulations cover the display of tobacco prices on shelves and storage units and the two types of price list that may be displayed or given to customers when they ask for more information. Retailers must, of course, be able to continue selling tobacco products. Customers must, of course, be able to see which products are for sale and at what price. The labels on storage units also help staff to know where different products are, if they are stored in covered shelving.
Regulation 1 provides for the regulations to come into effect on 1 October 2011 for large shops, and 1 October 2013 for small shops. Shops are defined as large or small in line with provisions in the Sunday Trading Act 1994. That approach is supported by the Association of Convenience Stores and local authorities. It gives a clear and straightforward definition that is already understood by retailers and easy to enforce.
Regulations 2, 3 and 4 provide for definitions and set out how the other regulations apply. Regulation 5 applies to all tobacco price lists and price labels, setting out permitted wording and specifying the typeface and style of type that must be used.
Regulation 6 sets out the maximum size, permitted title and generic sub-headings of prices lists that may be displayed. It sets out the maximum height of the wording, specifies that there must be no border or frame and limits the number of price lists to one for each area where tobacco products are located and paid for.
Regulation 7 applies, with regulation 5, to price lists available only on request—including pictures of the products. The aim is to ensure that customers who, for whatever reason, cannot read English are able to identify the brand they want by recognising its picture. The list will show pictures of branded products, so they can be shown to adults only on request. The regulation sets out the maximum size of pictures and of wording, and limits the number of each price list to one for each area where tobacco products are located and paid for.
Regulation 8 applies to labels on storage units—any shelf, gantry, cabinet or unit where tobacco products are kept pending sale. The regulation specifies the maximum size of the label and of the wording on it. As a result of the consultation, the limit on the size of the wording has been increased from 3 mm to 4 mm, which is in line with the guidance of the Royal National Institute of Blind People, from which we were keen to receive representations.
Regulation 9 provides for specialist and bulk tobacconists to be exempt from the regulations for price lists and labels inside their shops or tobacco areas. They are, however, allowed a single price list on show to the public outside the shop or tobacco area provided that it is consistent with the price lists that other retailers are allowed to show—in other words, that it complies with the limitations set out in regulations 5 and 6.
Mike Penning: I am listening carefully to the Minister. She is saying that, in non-tobacconists, pictures of the product with prices will be available on request for visually impaired people but, in a tobacconist’s, such people will not know what the prices are because there will not be any pictures of the product.
Gillian Merron: Perhaps I can clarify the situation for the benefit of the Committee. There will be written prices. However, anyone who cannot, for whatever reason, read English will be able to ask for pictures of the products. We want to assist retailers and we also wish to assist consumers to make their choice, as is right and proper. We have listened carefully to the RNIB and what it believes is the correct sizing. We are trying to achieve regulations that will work. We listened carefully in the consultation. If the hon. Gentleman and others look at the responses to the consultation, they will see how we amended what we originally proposed so that the provisions would be workable and could be supported.
In some instances, as I have said, suggested changes have been made where the Government believed that they would strengthen the effectiveness of the regulations and ensure that they were practical for retailers. For example, the size of the price list allowed was increased, since the initial size would have made it difficult to display all tobacco products available for sale. We believe that the final regulations that we are bringing forward strike the right balance between protecting public health and recognising the needs of businesses, while respecting the will of the House. We believe that the regulations are practical and effective, and I commend them to the Committee.
The Chair: I remind the Committee that because both instruments are being taken together, the debate can continue for one and a half hours, so we can go on until 6 pm, having started at 4.30 pm.
4.42 pm
Mike Penning: It is a pleasure, Sir Nicholas, to be representing Her Majesty’s Opposition under your chairmanship this afternoon. I am deeply disappointed by several aspects of the regulations brought forward this afternoon. We have a completely free vote—to which I alluded earlier—so it will be up to my colleagues to decide how they vote, should we have a Division later, which we almost certainly will.
It is a shame that the Government have loaded their Benches. I am astonished to see the Chair of the Health Committee—the right hon. Member for Rother Valley—on a Statutory Instrument Committee. His is an excellent Committee, which has taken a lot of evidence—I was a member of that Committee—and produced an excellent report. I would have thought that the Government would allow their Back Benchers to have a view this evening, without loading the Committee in such an obvious way.
Mr. Kevin Barron (Rother Valley) (Lab): Will the hon. Gentleman give way?
Mike Penning: No.
Mr. Barron: Why will the hon. Gentleman not give way?
Mike Penning: I do not want to; there we are.
The Chair: Order. The hon. Gentleman is not giving way. He has the right to make that decision.
Mike Penning: Thank you, Sir Nicholas. I may give way later if I make some progress.
The legislation will have a huge effect on retailers and law-abiding people conducting the trade of selling tobacco, which, as I understand it, is still legal in this country, under certain regulations that I fully accept should be in place. I stand here not as someone who opposes the Government’s legislation—as the Committee knows, I was a signatory to the amendment that created the ban on smoking in public places. It was not a selective ban, as first proposed by the Government, but a full ban. My decision was based on the evidence put before the Health Committee.
The evidence for the first statutory instrument worries me. The explanatory memorandum lists policy options—options that the Government could have chosen. Option 1 is “Retain the status quo”. I do not think that anyone accepts that the status quo would be right, and yet option 2 is “Prohibit the sale”. That goes from the sublime to the ridiculous.
Many different methods could be used to prohibit young people getting cigarettes from vending machines, without banning the machines completely. I was in Manchester earlier this year, and stayed with a hotel group called Jurys Inn. People could access cigarettes from the vending machines there only if the barman had checked their age—in my case he obviously checked carefully that I was over 18. An infrared signal was then sent to the machine, and the product vended. It was impossible for a person under the age of 18, unless they were using a fake ID, to access the product. That is the sort of thing we would expect in a tobacconist’s. It is the sort of thing that adults in a grown-up society, who wish to purchase expensive products such as cigarettes from vending machines, should have the opportunity to do.
Malcolm Wicks (Croydon, North) (Lab): How does the hon. Gentleman’s experience of Jurys Inn, where the barman—or barwoman, I guess—checks the age, relate to overwhelming evidence that every day of the week barmen and women sell alcohol to people who are under age?
 
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