House of Lords
Friday, 7th December 2001.
The House met at eleven of the clock: The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Hereford.
Tobacco Advertising and Promotion Bill [HL]
11.6 a.m.
Lord Clement-Jones: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Clement-Jones.)
On Question, Motion agreed to.
House in Committee accordingly.
[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]
Clause 4 [Advertising: exclusions]:
Lord Naseby moved Amendment No. 22:
- Page 2, line 19, leave out X(other than an in-flight magazine)"
The noble Lord said: We are now on the second day of the Committee stage. It would be to the advantage of the Committee if I reiterated that I have no interest whatever to declare in this matter. I do not even smoke. The only reason I am taking a particular interest in the Bill is that I believe in commercial freedom of speech, particularly in relation to any product or service that is freely available to citizens of the United Kingdom.
There have been a couple of developments since we met some days ago. In particular, I draw the Committee's attention to an interesting whole-page article in the Sunday Times of 2nd December, which I believe merits reading by noble Lords at their leisure. It has particular relevance to the Bill and to the amendments to which I am about to speak.
The article reminds us that nearly 8,000 people are employed in an industry which is worth #7.8 billion. Those figures are fairly accurate. They mean that, as we look at the amendments, we should recognise that this is not a fringe market but a very significant part of United Kingdom industry. It is an industry where the UK itself and the companies in it play a very significant role.
As I move on to speak specifically to the particular features of Amendments Nos. 22 and 23, it seems to me that if the Bill is to comply with the judgment of the European Court of Justice in regard to the previous, annulled, directive, the new directive will prohibit tobacco advertising which crosses borders. The Commission's proposal, published and consulted upon by Her Majesty's Government in the late
summer of this year, went further: it banned all tobacco advertising in the press and, incidentally, on the Internet.It is to be hoped—even if only to avoid a possible legal challenge, which I understand Germany may now be undertaking—that the final wording of the new directive will confine itself to advertising which crosses borders, leaving it to individual member states to maintain and make their own provisions with regard to tobacco advertising which does not cross borders. That seems to me to be—I hope I take the Committee with me—entirely logical.
The Bill should obviously take account of and implement the final terms of the directive. In additionally legislating for the UK only, it can obviously do so only to the extent that the UK has legal jurisdiction. Under the Bill as it stands, it is not—I repeat, it is not—an offence for a tobacco advertisement to be published in a magazine, or its Internet version, as long as the magazine is not the in-flight magazine of a UK airline—I pause because there is a slight caveat—unless that airline appears to the Civil Aviation Authority to have its principal place of business in the Channel Islands or the Isle of Man—in which event no offence is committed—or if the principal market of the publication is not the United Kingdom or any part of it.
There does not appear to be any sound reason, in my judgment, for these tortuous provisions as they relate to magazines on board aircraft. What is more, they are highly anti-competitive and discriminatory. They discriminate between UK airlines, airlines having their principal place of business in the Channel Islands or the Isle of Man and airlines which are not UK airlines. So there are three categories, and the Bill as it stands discriminates between the three.
To discover the reason for the distinction and discrimination, we have to go back to the Explanatory Notes to the Bill that were previously published by the Government. In those Explanatory Notes—which I know have no legal standing but presumably they are there to help us—it is stated that the reason is to reflect,
- Xthe fact that in-flight magazines of non-UK airlines are not aimed at a clearly defined national market".
So, if I have taken the Committee with me thus far, I shall move further. That explanation implies that the in-flight magazines of UK international airlines such as British Airways, Virgin and British Midland are different. But they are not different, are they? The in-flight magazines of scheduled British airlines do not generally have Xa clearly defined national market". Indeed, I venture to suggest that if any of your Lordships were to contact British Airways, you would find that, while it is very proud of its heritage and Britishness, it is not defined as an Xinternal" national airline. Its whole strategy can be seen in its advertising strap line—XThe World's Favourite Airline". What it wants is travellers from outside the UK.
We have only to look at the different nationalities of those who book seats with the airline—the Committee will be pleased to hear that I shall not list them. I think it will be accepted that the vast majority are not
British—certainly, in normal times they are not. The in-flight magazines of BA scheduled flights do not generally have a clearly defined national market. The market is essentially international. It is related to the routes that BA has, the destinations and departure points. Its passengers come from many different countries.So there is no good reason for introducing special provisions for in-flight magazines. In my judgment, the publications of airlines should be treated no differently in the Bill from other publications. In-flight magazines should be subject to the terms of Clause 4(1)(c). The in-flight proviso of paragraph (d) should be removed. There would then be no need for subsection (4). In-flight magazines should surely be regulated only by whether their principal market is within or outside the UK, just like every other publication covered by the Bill.
As the promoters of the Bill stated earlier, they do not believe that the Xprincipal market" should be a matter defined in the Bill; they believe that it should be determined by the courts. If that is to be the case, the courts will be able to determine whether the principal market for an in-flight magazine was in or outside the UK. Subsection (4) as drafted excludes airlines whose principal place of business is in the Channel Islands—principally, it must be presumed, although I have not checked this, because the Channel Islands airlines legislation on tobacco advertising exempts in-flight magazines.
Amendment No. 22 seeks to remove the distinction that the Bill currently draws between in-flight magazines and other publications. It would remove the competitive nature of the existing provisions, and it requires the consequential amendments included in this grouping. I beg to move.
11.15 a.m.
Lord Faulkner of Worcester: I wish to speak briefly to the two amendments standing in my name on the Marshalled List; namely, Amendments Nos. 23 and 30. I agree—possibly for the only time today—with a great deal of what the noble Lord, Lord Naseby, has just said. This is an opportunity to make what might be termed a modest improvement to the Bill. I very much hope that the noble Lord, Lord Clement-Jones, who is promoting it will consider our remarks and agree to our proposals.
Amendments Nos. 23 and 30 relate to the issue of in-flight magazines. Airline passengers deserve to be protected from intrusive advertising in in-flight magazines as much as anywhere else. Among their number will be a substantial proportion of smokers, 70 per cent of whom—if the national figures are to be believed—want to give up smoking. They will not like the idea of intrusive advertising in in-flight magazines. There is no reason why one type of advertising—namely, in in-flight magazines—should be excluded from this legislation.
However, as the Bill stands, only United Kingdom air carriers would be affected by a prohibition on tobacco advertising in its magazines. Carriers from
other nations, which may make as many, if not more, flights into and out of the UK than some UK carriers, are currently exempt from the Bill's provisions. Amendment No. 23 seeks to remove this exemption, putting all air carriers on the same legal footing. UK carriers should not be subject to stricter controls on the content of their in-flight magazines than other carriers using UK airports.I discussed the amendments yesterday with the noble Lord, Lord Skelmersdale, who cannot be present. I believe that I reflect his view accurately. It makes no difference to him whether all in-flight magazines are included in the terms of the Bill or whether they are excluded; the important point is that they should be treated in the same way. So the noble Lord is in support of what we seek to do in the amendments
The exemption in the Bill as drafted has caused some concern among United Kingdom carriers. I gather that some of the leading carriers have made representations about the matter. They are keen to ensure that there is a level playing field. I am sure that Members on all sides of the Committee will agree that in the current climate we should do nothing that puts United Kingdom airlines in an inferior position in relation to their overseas competitors.
Neither my amendment nor the Bill itself prohibits airlines from selling tobacco products to their customers. Regulations under Clause 4(2) dealing with the point of sale will allow Ministers to specify what advertising will be allowed in connection with the sale of cigarettes and other tobacco products on planes.
Perhaps I may give an example to make the distinction clearer. British Airways, for example, has two main in-flight magazines. High Life is a glossy which carries reading matter interspersed with advertising. It has not carried tobacco advertising for a number of years. Shopping the World is a catalogue and it carries two pages of pictures of tobacco products for sale on the plane and gives details of their prices. The Bill will ban tobacco advertising in publications akin to High Life. The regulation-making power for Xpoint of sale" under Clause 4(2) will allow Ministers to determine the extent to which advertising can continue in publications such as Shopping the World Most carriers flying into and out of Britain have an address in this jurisdiction where process can be served in case of an alleged offence under the provisions of the Bill.
Amendment No. 30 is consequential on Amendment No. 23. It deals with the definition for the purposes of the Bill of a UK airline. Removing the exemption for non-UK airlines would remove the need for that definition. If Amendment No. 23 were accepted, Amendment No. 30 would be uncontroversial.
The case for a total ban on tobacco advertising strengthens with every day that passes. This week we have seen new research suggesting that half of the UK's smokers think that smoking cannot be too dangerous if cigarette advertising remains legal. The passage of an effective Bill to stop tobacco advertising
is seen by the public as a test of the Government's commitment on public health. We should listen to that and take account of the clear support that the Bill enjoys among the public. It also makes sense for us to improve the Bill slightly by strengthening its provisions in the way that I have proposed.
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