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Earl Howe: I speak to Amendment No. 26 which has been grouped with the amendment of my noble friend. The purpose of the amendment is very simple. In broad terms it is to prevent the law from making an ass of itself.
I recently travelled with my family on a restored steam railway line at Matlock, Derbyshire. It is a wonderful experience, at least for anyone who enjoys nostalgic rides of that kind. I confess to being a complete sucker for them. Much of the line, including the stations on it, has been restored by volunteers.
One feature at several of the railway stations caught my eye. On the station platforms were a number of those old tinplate advertisements for cigarettes such as Players and Senior Service. Those are two that I noticed. Although those advertisements are old they are not placed there with any thought or aim of attracting new customers to those brands of cigarettes. Nevertheless, they clearly meet at least one half, if not both halves, of the definition contained in Clause 1. Their purpose, when created, was to promote a tobacco product. Indeed, some might say that their effect could also be to that end. In some cases the tobacco product in question is still on the market. But even if the particular brand in the advertisement is no longer on the market, it could conceivably be argued that those advertisements have the general effect of casting tobacco products in a favourable light.
Whatever the merits or demerits of the Bill as regards its central aim and purpose, I believe there comes a point when we ought to recognise absurdity when we see it. Old or antique advertisments for cigarettes—most of them long since forgotten, I dare say, by the cigarette manufacturers who commissioned them—should not be treated as though they were genuine advertisements. There should be no danger of them being treated in that way. If the Bill has the effect of making the display of such advertisements illegal, then I believe that that is complete overkill.
I have therefore framed an amendment which is designed to exempt these historic kinds of advertisements while at the same time ensuring that only these kinds will be exempted. In other words, my intention is in no way to create any sort of wider loophole. I trust that the amendment does not do so. I hope that the noble Lord, Lord Clement-Jones, will be sympathetic to the aims of the amendment which I have tabled.
Lord Monson: I must admit that I had not realised fully what the noble Earl, Lord Howe, was getting at in Amendment No. 26, but now that he has explained it I fully understand and wholly sympathise with him. His amendment is admirable. I hope it is not resisted but, if it is, perhaps he could compromise and change the figure to 40, or something like that.
The other point to be made here is that many advertisements will be for cigarettes that are no longer available. I do not know whether people still smoke Woodbines in this country, or Craven A and Senior Service. I suppose they do still exist although I do not know whether anybody still smokes them. Perhaps advertisements for tobacco products which are no longer available in the United Kingdom could be left in situ.
Lord Filkin: I will respond to Amendments Nos 17 and 26, which have just been spoken to. Clause 4(1)(a) provides that no offence will be committed if a tobacco advertisement is contained in a communication made for the purpose of the tobacco trade and directed solely at people engaged in that trade. This would apply, provided that conditions were satisfied, to trade journals and magazines, mail shots for tobacco companies to retailers and handouts at trade exhibitions. This is clearly not exclusive, and there may be other forms as well.
Any communication, however, must be directed solely at people who engage in the trade, and this would be a matter of fact in all cases. However, it would not matter if a curious member of the public picked up and read a trade journal in a library, provided the journal was directed at the trade. Therefore we do not believe that there is the danger behind the amendment moved by the noble Lord, Lord Skelmersdale.
Turning to Amendment No. 26, as proposed by the noble Earl, Lord Howe, in essence the Government agree that it would be absurd if historic advertisements in museums, for example, were caught by the Bill. We do not believe that that is the case and therefore we do not believe that the amendment is necessary. Such items will not generally fall within the definition of "tobacco advertisement" in the first place and so there is no need for any exemption. More technically, the cut-off date of 30 years could prove difficult to enforce, and intrinsic value might be difficult to define or interpret.
The central aim of the Bill is to catch not historic tobacco advertisments but active, current advertisements. Clearly, there could be circumstances where, to take up the point made by the noble Lord, Lord Monson, an historic advertisement for Senior Service was taken out and used again to re-promote a new brand called Senior Service. That would be a different case, but in the circumstances referred to by the noble Lord there would be no risk of the Bill catching people in that way. Because of that, we do not believe that there is a need for the amendment as proposed.
Lord Monson: Before the noble Lord sits down, he will be aware that many shops all over the country, but particularly in London, sell replicas of old posters: art nouveau or art deco ones, and so on. Students like to decorate the walls of their rooms, and some posters might contain advertisements, say, from the 'twenties or the 'thirties for Gauloises and Gitanes, which are
still available in the shops. They might have different packaging, but they are still available. How would these be dealt with?
Lord Filkin: Speaking off the cuff, I would have thought that in those circumstances what was being purchased in the shop and what was being advertised was not tobacco but historic advertisements of tobacco products and therefore not caught by the Act.
Lord Clement-Jones: The two amendments being debated here are rather different in their impact. I am still a little baffled by the reasons why the noble Lord, Lord Skelmersdale, tabled Amendment No. 17 in the first place. The splendid Swedish case he mentioned turned rather more on interpreting the word "solely" than on examining the means of communication. Perhaps that is only a comment on the legal case, but I think the difficulties faced by the Swedish courts were caused by the game of legal ping-pong between the various jurisdictions concerned with the case. I am sure that it would serve as a good guide to action in the present case. Surely the issue was whether "solely" means exactly what it says.
The clause as it stands picks up the widest possible range of communications. It is a broad provision and in that respect must be satisfactory for those who will need to rely on it. I feel that it has all the merits of being inclusive as opposed to exclusive.
As regards Amendment No. 26, the descriptions of the noble Lord, Lord Monson, induced nostalgic thoughts of railway journeys over the weekend. However, I am happy to rely on the Minister's assurance that only extinct tobacco product advertising for brands such as Woodbine and Senior Service—when the noble Lord mentioned that brand, it took me back to my own smoking days—will be permitted. It is reassuring to learn that that kind of advertising will continue to adorn railway stations around the country, which no doubt many noble Lords will see when travelling at the weekend.
The Earl of Liverpool: Perhaps I may refer to a point made by the noble Lord, Lord Filkin, in response to the noble Lord, Lord Monson. If replicas or copies of old advertisements were, in effect, available in shops for sale to the public, those pictures would not be caught by the Act. I wonder whether, for the benefit of the Committee, the noble Lord could confirm that once more.
Lord Filkin: I do not believe that that was what I said, but if I did then it was not what I intended. What I sought to make clear was that if an historic cigarette advertisement was being advertised for sale in a shop selling memorabilia and someone purchased it, the transaction would not concern tobacco but a piece of historical memorabilia. For that reason, I would not have thought that such an advertisement would be caught by the provisions of the Act.
The second example I gave was that if, for example, an ingenious tobacco manufacturer took an historic advertisement for Senior Service and then began to re-manufacture Senior Service products and market
them, that would be caught by the Act. In those circumstances, the producer would be seeking to advertise and retail tobacco products rather than to advertise and retail memorabilia about tobacco products. Those were the distinctions that I sought to make.
The Earl of Liverpool: I am grateful to the noble Lord. However, I do not quite follow the argument. Is he saying that members of the public could go into a shop in which hundreds of posters might be rolled up in a corner and from which buyers could make a selection? I do not refer to re-manufacturing a Senior Service product; rather that the public will be able to buy a replica of an old poster which could be hung in a room at university or elsewhere. Would that be acceptable and not be caught under the legislation?
Lord Filkin: As a matter of common sense, I would expect that to be the case; namely, that it would not be caught under the legislation. An individual purchasing an historical poster advertising Players No. 6—to change the tune a little—would not be caught under the legislation. However, one must be mindful of creating loopholes in the Bill. For that reason, I should point out that if a company took an old advertisement and used it actively to promote cigarettes, it would be caught.
In effect I have repeated what I said previously in a way that I hope is clear.
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