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Baroness Jay of Paddington: Perhaps I may ask the noble Lord, Lord Clement-Jones, when he replies to
the point raised by the noble Lord, Lord Naseby, to address the question about diversification raised by the noble Earl, Lord Howe, using the Camel company as an example. Is not the point that if the company diversifies and starts to make something totally different but continues to make cigarettes and there is, as it were, a connection between cigarettes and the subsequent product—we have all given examples such as clothing, especially of a kind attractive to young people—in the nature of things, there is bound to be an element of cross-promotion? If the company abandons cigarettes and makes only T-shirts, that is fine, it seems to me.
Lord Clement-Jones: The noble Baroness, Lady Jay, puts it more temperately than I might have done, although I realise that the noble Lord, Lord Naseby, is a mere seeker after truth.
The essence of the matter is that if the company goes straight and gives up selling tobacco, it will not be caught by the Bill, except under the regulations provided for in Clause 11. Those regulations will provide that companies are not brand-stretching if the brand is no longer a tobacco brand and the activity does not constitute tobacco advertising or sponsorship. There is an element of faux naivete to the matters that have been raised, which are highly commercial. No one involved in tobacco sales or advertising is naive and we should not be when addressing such issues.
I could cite examples from Malaysia other than those that we have heard about today. One of the great problems—I regret this—is that many of the tobacco companies will target the developing and not so developing world, which does not ban such activities. For instance, the brand Salem has set up as a concert promoter in Malaysia. That is another example of getting around cigarette advertising. We have heard about Sainsbury's problem with own brands. Regulations can deal with such matters.
Lord Naseby: Does that mean that supermarket chains' own brands will be exempt? If so, that drives a coach and horses through the whole Bill.
Lord Clement-Jones: The noble Lord asked a question in the context of brand-stretching: whether Sainsbury could advertise full stop or whether that would be brand-stretching a tobacco product. The answer is that I have no doubt that the regulations would ensure that they were not caught. I hope that that is a clear answer to his question. I certainly did not say that Sainsbury would be the only company entitled to advertise tobacco products; if it were, that would be a massive commercial advantage to it, but I must say that I have not been lobbied on the matter by Sainsbury.
We must accept the Minister's assurances about how consultation will take place on the regulations, which need to be flexible. I think that we have had enough knock-about on this group of amendments and that my approach is clear.
Lord Lucas: It being proverbially hard for a camel to pass through a loophole, especially if it is driving a coach and horses at the time, I probably agree with the argument of the noble Lord, Lord Clement-Jones. However, he has raised a question in my mind about Clause 11. Why was not the approach taken of deeming the use of the emblem, or whatever, to be a tobacco advertisement? We would then be back within the mechanism of the Bill, knowing who commits an offence in what circumstances and what are the defences. Under Clause 11, the use of the emblem, say, is made an offence under subsection (4), but, because the offence is separately constructed, it is not clear who is guilty.
If Marlboro prints a T-shirt in America, it does not commit an offence under the Bill. If someone imports that T-shirt into the United Kingdom, does he commit an offence? If someone prints a T-shirt for Marlboro in this country, does he commit an offence? If someone is seen wearing the T-shirt, does he commit an offence? It is unclear what Xuse" means or what defences people have to the offence. I should greatly appreciate clarification—by letter if not today.
Lord Clement-Jones: I thank the noble Lord, Lord Lucas, for that point. That is precisely why it is important to consult about the regulations. The matter is not absolutely straightforward; the clause does not say, XRegulations shall apply only to X, Y and Z persons". A range of people will be affected by the regulations. I understand the noble Lord's point, and I thank him for his support in opposing the amendments.
Earl Howe: I hope that my noble friend Lord Lucas has enabled the noble Lord, Lord Clement-Jones, to understand, at least in part, why I tabled Amendment No. 25. As we all know, the noble Lord is adept at knock-about argument, and some of it has clearly had an effect on the Committee, but I caution Members of the Committee. There is a danger that in knock-about argument we lose sight of the serious points that have been raised.
I especially regret that, at least occasionally, we have heard the language of a witch-hunt against tobacco companies. I hope that we do not fall into that trap as we proceed with the Bill. We may have private views about tobacco companies, but I hope that we shall not be deflected from the Bill's central purpose, which is to ensure that tobacco advertising is restricted. I humbly suggest that we should avoid putting any emotional or judgment gloss on that.
Lord Peston: I thank the noble Earl for giving way. He was right to raise these matters because they will then influence the regulations. However, surely we must not lose sight of the fact that we are dealing with
the Tobacco Advertising and Promotion Bill and not, for example, the Apple Advertising and Promotion Bill. We are considering tobacco for a definite reason.The noble Earl used the words Xwitch hunt", which is slightly too strong, but we would not be considering the matter if, say, a modicum of antipathy to these companies did not lie behind our considerations. Surely the noble Earl accepts that.
Earl Howe: I certainly accept what the noble Lord, Lord Peston, says as regards himself and no doubt other noble Lords. I do not want to position myself on one side of the line or the other.
I ask the noble Lord, Lord Clement-Jones, to reflect on what I said earlier, particularly as regards the principle of proportionality. My amendments are not about—and are not intended to be about—creating loopholes. They do not suggest that the Bill should ignore brand-sharing altogether, as the noble Lord, Lord Filkin, suggested. I am sorry that the noble Baroness, Lady Jay, believes that I am a touch disingenuous. I can assure her that I am as keen as she is to ensure that there are no loopholes in the legislation for people to exploit.
However, the purpose of the Bill is to regulate tobacco advertising and in so doing to reduce the prevalence of smoking. The Long Title of the Bill reflects that specific purpose. It is not justifiable but, more to the point, it is not proportionate to sweep up other types of advertising and other types of product into the jaws of this legislation. I suggested that in terms of European law it is dangerous to try to do so. It is too restrictive.
Nor do I believe that it is fair to seek to leave these matters entirely to secondary legislation, which the noble Lord, Lord Clement-Jones, knows cannot be amended. I have not suggested that there should be no power in the Bill to create regulations, but we ought to have an explicit provision on the face of the Bill making clear that genuine brand-diversification will be exempt from the scope of the legislation. That is only fair on companies such as WBI, which cannot at present carry on its business with any certainty.
Indeed, I believe that there is a strong argument for saying that we should be encouraging tobacco companies to diversify. In that context, considerable concern has been expressed to me about the current EU draft directive. I should like to raise a further point for the Minister to consider. Some British companies operating internationally do not manufacture tobacco products but they share a brand-name with a cigarette manufacturer. I mentioned the example of Alfred Dunhill Limited, which is a luxury goods company. It has been a luxury goods company for more than 100 years and it uses its brand-name in good faith for its own products.
The concern which it has about the latest text of the draft directive is that it contains no instruction to member states to include in their national legislation a due allowance for bone fide brand-sharing. In fact, brand-sharing and indirect advertising are not mentioned, although in the past they have always been
recognised as an integral issue—as well they might have been. I do not dispute the concept of brand-sharing as a potential loophole, but the directive does not appear to mention that. Apart from the single market implications of different rules operating in different member states, companies such as Alfred Dunhill Limited are alarmed at the prospect of having to lobby up to 14 more parliaments to amend their secondary legislation so that they can continue to trade.This is a separate issue from those which I have been discussing, but I wonder whether in advance of the next health council the Minister could put down a marker to ensure that this matter is again discussed at EU level. There is a danger to bona fide non-tobacco companies operating within Europe that their advertising rights will be curtailed and British economic interests thereby damaged.
With that, I shall reflect on what has been said in the debate. I shall reserve the right to raise the matter again if necessary on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12.45 p.m.
Lord Naseby moved Amendment No. 27:
- Page 2, line 24, leave out Xappropriate Minister" and insert XSecretary of State"
The noble Lord said: I must go across the northern Border and therefore I move with some trepidation. Clause 4(2) provides for the regulations to be made governing advertising at the point of sale and on websites where tobacco products are offered for sale. Clause 8 also provides for regulations to be made governing displays of tobacco products and their prices in places, including websites, where the products are offered for sale. Both Clauses 4 and 8 permit regulations to be made for Scotland quite separately from England, Wales and Northern Ireland and for those regulations to be made by Scottish Ministers and the Scottish Parliament.
It has been said that that is necessary because there may be different circumstances and requirements in Scotland. However, at no time in either Westminster or Edinburgh has a single example been provided, until this morning, which establishes the need for different provisions applying in Scotland as opposed to any other part of the United Kingdom. Manufacturers and retailers are puzzled by the need to provide separate regulations in the Bill and they are also deeply concerned.
I submit to the Committee that it is not sensible that the many retailers that have businesses on both sides of the Border might have to comply with two different sets of regulations and the higher costs of the operations involved, for which no justification has been provided. Furthermore, as Clause 4(2) states, the regulations are also to apply to websites. In that regard, the Minister in the other place admitted in the previous Parliament that there would be considerable
problems if different regulations were to be made for Scotland in respect of websites. The opportunity for that to occur should not be provided by the Bill.At one time, it was the thought and intention of the Scottish Parliament to make the former directive, now annulled, the first European measure to be implemented by the Scottish Parliament, quite separately from England and Wales. There may well have been political reasons or pressures as to why that particular course was later discarded. But there may also have been a reason which lies in the different provisions which apply to legislation in Scotland in relation to human rights and which permits legislation to be challenged in the courts on human rights grounds.
The power that the Bill gives to Scotland to make its own regulations in respect of advertising at the point of sale, including websites, may therefore be intended to be some form of consolation for the Scottish Parliament for not having its own tobacco and advertising and promotion Bill. I submit to the Committee that such political window-dressing should not be permitted by the Bill and it is not something which I imagine the promoter of the Bill—if he is listening to me—would ever consider. I should like him to respond specifically to that point.
In my judgment, there is no justification for the regulations governing points of sale to differ between Scotland and the rest of the UK. That should be recognised by the acceptance of the amendment, which would effectively permit just one set of regulations. I beg to move.
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