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Lord Naseby: The Minister says that there are to be regulations. Presumably the Committee is aware of the statutory instrument and whether that will require negative or affirmative approval. Equally importantly, the Minister must understand, as I am sure the Government do, that the tobacco industry is an important industry in the United Kingdom. One can be certain that at the moment that industry is weighing up the effects of this Bill. That is quite right. If the industry did not do that, it would be considered a gross dereliction of duty to its employees. Therefore, it is behoven to the Minister to say to the Committee that the regulations will be prepared within a certain timespan.
If this Bill is passed and receives Royal Assent, the worst of all possible worlds would be that the Government spend the next year or two conducting consultations. I do not know the definition of words like Xsimilar". On the government Benches there appears to be a view that there is a natural meaning, which I understand from the Minister of Health is something one can always fall back on if one is the Minister of Health, but it is a little more difficult to do that if one is not.
Can the Minister give the House, and more importantly the wider world, an indication that those consultations will take place within a certain timeframe and that those regulations will also be laid within a certain timeframe so that planning can take place? There is nothing worse than a major industry being left to hang on the hook while the Government consider the position.
Lord Filkin: I thank the noble Lord for his questions. The regulations under the brand-sharing issues will be affirmative ones. If the Bill becomes law, the Government will want early consultation to ensure adequate opportunity before the Bill comes fully into effect.
With regard to the noble Lord's point about the effect on the industry, we shall debate that matter later under Amendment No. 93. I shall leave comment on it until then.
Lord Clement-Jones: This is clearly an important part of the Bill. We have had a useful consideration of the arguments. In conclusion—and I shall come to the reasons why—Amendment No. 25 which has been moved and Amendments Nos. 66 to 68 and 70 which are part of the same group would, if accepted, drive a coach and horses through the Bill.
The noble Lord, Lord Naseby, in his delightful way has added a note of unnecessary melodrama to our proceedings. I do not propose to drive any company out of business. Over the past 25 years, as a lawyer, I have extensively advised companies on intellectual property matters. None, so far as I recall, was driven out of business by my advice—at least, no one has come to me and told me that they have been.
The point is that intellectual property is a valuable property. It is part of a company's marketing strategy. The use of that property is of great importance. Brands are extremely valuable. Tobacco companies' extension of brands is clearly part of a strategy which is followed world-wide. If we did not provide for it in fairly careful terms in the Bill, we would be creating a large hole in our provisions against tobacco advertising and sponsorship.
There is evidence about brand diversification and its effect on smoking. The noble Lord, Lord Filkin, talked about the research from the Centre for Tobacco Control at Strathclyde University. I shall not repeat what he said about that, but it is clear that young smokers are affected by brand-sharing. Some of that research is ongoing. Brand-sharing is a relatively new art, precisely because advertising has been restricted in a number of different ways by voluntary agreement.
In addition, a further study at Strathclyde—not the one mentioned by the noble Lord—found that students shown a poster for Marlboro Classics clothing were more likely to associate it with cigarettes than with clothes.
Lord Naseby: I thank the noble Lord for giving way. It would help those of us who do not have the Strathclyde report, or indeed the new report, to have some indication of when the report was published so that we can get the proper references. It is easy enough to trot out that this report has been done here and that that bit of research has been done there.
In passing, perhaps I may say to the Minister that if we are to be told that certain research has been carried out, it would help myself, and, I am quite sure, those who follow these matters, if we knew exactly which research we should be referring to—for example, by whom and the date on which it was carried out. To have the title of the research would help even more.
Lord Clement-Jones: I was speaking of a very respectable source—the British Medical Journal, 3rd March 2001, volume 322, page 513. I am sure that the noble Lord can pick up a copy on his way out of the House today.
Lord Naseby: I require the primary reference not the second-hand reference from the publication, the BMJ. The BMJ may well have it right. However, I suggest to Members of the Committee that since we are dealing here with matters of primary legislation, the reports should refer to the primary source and not to those transmitted through a trade union publication.
Lord Clement-Jones: If the noble Lord knew anything about medical research, he would know that medical research is not considered respectable until it has been peer-reviewed and published in a medical journal. That is exactly what has taken place. The journal is treated as the case reference.
Baroness Finlay of Llandaff: Perhaps I may inform the Committee, and particularly the noble Lord opposite, that the BMJ is not controlled by the BMA.
It is an independent journal. It is peer-reviewed. All the articles are available on the website and are accessible through the Library. The reference given by the noble Lord, Lord Clement-Jones, is the correct reference.
Lord Naseby: I was not challenging whether or not the reference given was correct, but the noble Baroness, as a scientist, should know that she would not take the printed version from the BMJ as being necessarily absolutely accurate of the whole content of the research. By definition, a publication quite often will give the primary summary and some of its elements and not have all the detailed tables. If the noble Lord who is promoting primary legislation wants us to take seriously the research, all I am saying is that I should like to have access to that research.
Perhaps I may also say to the noble Lord that I am married to a general practitioner. I have a son who is a qualified medical practitioner. My daughter-in-law is a physiotherapist. So I do not need any lessons on the medical world from the noble Lord promoting the Bill.
Lord Clement-Jones: I thank the noble Lord for that splendid intervention. But the fact remains that, whether or not all his relations are doctors, all scientists and doctors take the publication as being the peer-reviewed evidence which the researchers in question want to see out there for discussion by other scientists and doctors. That is the way it is done in the scientific and medical profession. That is a matter of fact. If the noble Lord checks with his family, I am sure that they will confirm that that is the absolutely correct way of doing it. Scientists do not start producing sheaves and sheaves of all their protocols and replies to questionnaires simply because someone decides that they think that their research is not particularly palatable to them in the course of an argument. We must move on; but there is ongoing research which demonstrates that brand-sharing has an effect on smoking. I am sure that when the noble Lord reads the publication, he will be utterly convinced of that as well.
Another fact that is bandied about is that the Advocate General said that there is no evidence linking this to increased consumption. All that the Advocate General actually said was that he had seen no evidence. It was not put in evidence, precisely because it was not the point of the case. We need to nail this particular issue.
It is very easy to say that the original decision of the European Court was contrary to brand-sharing and so on and so forth, but that is absolutely not the case. The European Court's decision on the Tobacco Advertising Directive, which was withdrawn, was made on other grounds. Of course, as the noble Lord and the Members of the Committee know, it has been substituted by a draft directive putting into effect many of the comments made by the European Court of Justice, particularly that the directive must be confined to cross-border matters and not try to issue a blanket ban on advertising and sponsorship across the board.
I turn to the issues raised by the noble Earl, Lord Howe. The noble Earl did not raise matters—he never does—in a melodramatic form, but he played the violin slightly, if I may say so, on this subject. The noble Baroness, Lady Jay, gave the lie to that. It is quite clear that if the Camel Active trademark is worth anything, it is because of the goodwill built up over the years in the Camel tobacco trademark. That is the only reason. What other reason could there be? How many active Camels does one see? I am afraid that at the risk of being enormously unfair to the noble Earl, we must be very stony hearted in these circumstances. Really, that does not hold water at all.
I turn to the question of regulations. Of course we expect those regulations to be fair, commercial, sensitive and flexible—all those things. The noble Lord, Lord Filkin, made it clear that there will be extensive consultation on those matters. It is a matter of degree. The fact is that the legislation is designed to rest on a matter of fact as to whether or not advertising of tobacco products or brand-stretching is actually taking place. Of course, in some ways we may be in new territory when making regulations under Clause 11. However, I do not understand why Amendment No. 25 was tabled to Clause 2. Tobacco advertising is a question of fact: whether or not a tobacco product is being advertised. Clause 11 is there precisely to cover brand-stretching; otherwise it would not be caught.
Brand-stretching will be dealt with by regulations; the appropriate point to discuss some of the fine detail will be when they are framed. I accept that issues will be involved, but, as the noble Lord, Lord Peston, reminded us, tobacco companies will try to take advantage of every loophole in the Bill. We must ensure that we cover those loopholes in regulations. I am sure that hordes of intellectual property lawyers and their marketing agents will be poring over the Bill.
12.30 p.m.
Lord Naseby: As regards loopholes, would the noble Lord consider it a loophole if a UK tobacco company, recognising the strength of the primary legislation, decided to diversify into other products unrelated to tobacco? If it did so, it would have to use resources from its previous tobacco sales. Is he saying that there is absolutely no way that it could use a name for a brand that has ever been the name of a cigarette or any tobacco product? If so, that must be made clear in the regulations, because it is of fundamental importance to those tobacco companies—which, I repeat, employ 10,000 people directly, let alone the several hundreds of thousands who are indirectly employed. That is an important point and I seek clarification on it.
As I am on my feet, in order to save time, perhaps I may mention that I do not view medical scientific reports as qualified to comment on the development of global brands, Euro-brands or other brands. That was the tenor of the noble Lord's comments on research.
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