| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Jay of Paddington: I must respond to the noble Lord, although I do not know whether I will reinforce his point about the understanding in this House of the details of the matter. Our major concern—I speak as the Minister responsible for health in this House when the Bill was originally introduced, and for my right honourable and honourable friends who were in another place when legislation on this subject was first introduced—has been to avoid increasing the market in tobacco, particularly among young people.
I again draw on my now rather tattered sheaf of notes—they go back some years—which relate to brand-sharing concepts and their effect on the numbers of young people taking up smoking. For example, the 1968 campaign by Philip Morris on the introduction of Virginia Slims was dedicated to increasing the number of young women who smoked by using attractive advertising. I do not draw a direct causal relationship between these two facts but after the introduction of the campaign in 1968, within six years the number of teenage girls who smoked in the United States—where the campaign was particularly directed—doubled.
We know that tobacco companies have now moved their efforts into countries in which there has not been such a tradition of cigarette smoking. Children in Kenya are given T-shirts with Marlboro logos on them. That returns us to the point made by the noble Lord, Lord Naseby, about how such items may have, not the company's name, but a familiar slogan that is attractive. Apparently, a range of Marlboro clothing is successfully marketed in Guatemala.
I return to my original comments directed to the noble Earl, Lord Howe, namely, that there is a degree of disingenuousness—I am surprised to see that in your Lordships' House—in suggesting that there is no link between such very wide marketing activities and the increase in smoking in those countries.
Lord Filkin: The noble Earl, Lord Howe, has initiated an important debate in relation to this amendment. It is not for any trivial reason that the Government's view is that the Bill has to address the issue of brand-sharing and recognise the potential consequences for business diversification. The reasons are well known to noble Lords. If the Bill were enacted without any attempt to control brand-sharing, evidence from elsewhere in the world suggests that there would be a strong movement among tobacco companies to use brand-sharing as the means by which they promoted the image of their product and its association. If required, I could later give some evidence of that.
There is also evidence that such brand-sharing promotion activities affect consumption. To leave the matter out of the Bill, as may be the suggestion, would drive a coach and horses through what most noble Lords wish to achieve in the Bill.
I shall also touch on the reason why we have to use regulations to deal with this tricky issue. If we sought to put everything in the Bill, we would simply fail to spot an ingenious means to get around the provisions.
I turn to Amendment No. 25. Clause 11(1) allows the Secretary of State to make regulations prohibiting or restricting the use of non-tobacco products where any name, emblem or other feature is the same or similar to the name, emblem or other feature of a tobacco product. Subsection (1)(b) of the clause provides a similar power to prohibit or restrict the use of a tobacco product. Such regulations may be subject to exceptions and may be made only where the purpose or effect of the use is to promote a tobacco product.
The amendment would ensure that if a particular name, emblem or other feature of a non-tobacco or a tobacco product did not fall foul of regulations that were made under Clause 11, its use would not fall foul of other provisions in the legislation. However Clause 11(3) already does that. That subsection allows the Secretary of State to specify that where the use of a product is allowed under regulations by virtue of the clause, the Secretary of State may provide that advertising of those goods is also allowed. That gives the power to ensure that any company whose goods are allowed to be traded, even if they promote a tobacco product, need not fear Xdouble jeopardy". If the company were able to trade its products under regulations that were made under Clause 11, it would also be able to advertise them, and so on.
If the Bill were enacted, the Government would consult in due course on the content of any regulations made under Clause 11. We would need to ensure that the balance was right between preventing tobacco promotion and stifling business diversification. For those reasons, the amendment should, in the Government's view, be rejected.
I turn to Amendment No. 67. The deletion of Clause 11(1)(a), as the amendment suggests, would unacceptably restrict the scope of the Bill and create a loophole. Documents released into the public domain have revealed how the tobacco industry reacted many years ago to the threat of increasing restrictions on direct advertising by developing a strategy to use their brands on other products. There are clearly advantages to both sides in doing so. Marlboro Classic Clothing and Camel Boots get a head start in the marketplace, while the tobacco product gets a lift and regular promotion as a consequence.
A BAT internal document stated:
- XOpportunities should be explored by all companies to find non-tobacco products and other services which can be used to communicate the brand or house name, together with their essential visual identifiers. This is likely to be a long-term and costly operation, but the principle is to ensure that tobacco lines can be effectively publicised when all direct lines of communication are denied".
I shall give the Committee one or two examples of where we have seen a movement into brand-sharing. Malaysia probably provides the best example of legislation that prohibited direct advertising but did not prohibit indirect advertising. There is substantial evidence from that country as to how companies and their advertisers heavily promoted brand-sharing. Benson & Hedges was concerned about a relatively weak market share, which was declining, so the company opened up a bistro in Kuala Lumpur—Benson & Hedges Bistro—and advertised that cafe extensively on television. Two years later the sales of Benson & Hedges cigarettes had stabilised and Benson & Hedges was one of the most frequently recalled television commercials. Common commercial sense tells one that that is what companies will do where possible.
Amendment No. 68 seeks to limit the regulation-making power in Clause 11(1)(b) to prohibiting or restricting the use of tobacco goods where the names and emblems are identical to those of non-tobacco goods and excluding any that are similar. That would open up another problem: if it were illegal to advertise Marlboro spelt M A R L B O R O, the company could easily market Marlborough Classic Clothing using the more traditional spelling. Clearly the effect will be read across by young people.
Amendment No. 70 would prevent regulations being made in connection with a service or product that is first traded in good faith before the Act comes into force. The Government have sympathy with this amendment inasmuch as no one would wish innocent parties to be caught by the provisions of this Bill. In general, it is not intended that companies that merely shared a name with a tobacco brand should be caught by the Bill. For that reason the brand-sharing test will be a strict one.
This is a complex subject and because of its complexity regulations will be essential. The Government intend to consult fully and carefully on such regulations were a Bill to be passed making it possible to produce draft regulations.
Lord Naseby: I am grateful to the Minister for giving way. The Minister now says that the regulations on brand-sharing will be strict. In his opening remarks I believe he said that the creativity of the tobacco companies was such that he could not define brand-sharing in the Bill because no sooner will he have defined it than someone will find a way round it. There is a dichotomy. If the regulations are to be strict, the matter can be dealt with in the Bill, as I and I suspect those in the marketplace would prefer. They will know
that the Government are concerned about brand- sharing. The noble Baroness has referred to young women, which is one area of growth within a declining market. In the United Kingdom the market is declining—it is not growing—although among young women it is growing.That approach appears to be legitimate. The Minister should make the matter clear. If the regulations are to be strict, surely it is a matter that should be in the Bill. If the matter is so vague that it will have to be dealt with by regulations, then they cannot be strict.
12.15 p.m.
Lord Filkin: There are two fundamental reasons why such matters should be dealt with through regulations. First, it is right and proper to consult in great detail, which is not appropriate at this stage. Secondly, these issues are not static. Were we to arrive at this point, we should seek to ensure that full consultation takes place on the regulations so that before the Government acted—were they able to do so—they took into account the need for certainty and clarity which is a legitimate request by the tobacco industry.
On the other hand, to put such matters on the face of the Bill would mean that, were we not to identify a potential further opportunity for promoting the consumption of cigarettes, the only way of making such modifications would be by primary legislation. I do not need to point out to the Committee what a serious inhibition that would be to dealing effectively with this matter.
On freedom of speech, the exercise of freedoms under the human rights convention may be subjected to such formalities, conditions, restrictions or penalties as prescribed by law and which are necessary in a democratic society in the interest of a number of matters including public health. So there is clear provision within the European Convention on Human Rights for legislation of this kind. Quite properly the test will be one of proportionality and whether in practice it is so applied.
I do not believe that I should go into further detail on the regulations, but some important points have been made in the debate. They should inform the Government's consideration when, and if, they reach the point of preparing draft regulations. Some matters that they may consider are whether the name, emblem or other mark had been used to promote a product before a tobacco product that came subsequently; whether such a device had been used before a date nominated—the words dealt with may be historical rather than relating to future issues—and where there is clarity but no intention on the part of the person promoting it to promote a tobacco product.
At this stage those are mere conjectures, but the Government will want to be absolutely clear on prohibiting the ability of tobacco companies to use
brand-sharing to continue to promote their products and cigarette smoking, but they do not want to trap innocent companies that are not seeking to do that.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |