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Baroness O'Cathain: I wish to apologise to the Committee for the fact that unfortunately I was unable to take part in the preceding deliberations on the Bill. I am concerned about the way the debate is going. Both advertising and display can be called promotion. It is possible to say that a display might not necessarily be an advertisement, but I always think that a display is in fact part of an advertisement. From long years working in marketing, that is certainly the way it has come to be known.

Should we not add the words "any forms of promotion" to the Bill? I throw this in because I am becoming concerned about the way in which we are moving down one track called "advertising" and another called "display". The two are not really capable of being separated.

Lord Skelmersdale: I believe that, almost certainly, the answer to the point put by my noble friend Lady O'Cathain is to be found in Clause 1. A tobacco advertisement means,



    (a) whose purpose is to promote".

I suspect that that is exactly what the Minister was going to say.

Baroness O'Cathain: That is also the purpose of a display.

Lord Skelmersdale: I still have not received an answer on the point I raised. It is all very well to produce regulations which define what would turn a display into an advertisement. However, regulations are not then also needed to define what would turn an advertisement into a display. Therefore we do not need both paragraphs (a) and (b) of subsection (4).

Lord Campbell of Alloway: I have to declare an interest in that I am a member of the Lords and Commons Pipe and Cigar Smokers' Club. I never smoke cigarettes; I hate them.

Frankly, this is a most confusing form of drafting which seems to have confused everyone. Surely it is this: if a display is not an advertisement, then broadly

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speaking it cannot be considered to be a promotion; that is, if it is merely a display which is not an advertisement. Either it is or it is not an advertisement as a matter of fact. If it is an advertisement, that is fine. But if it is not an advertisement, well, then what is the matter?

I may have grasped the wrong end of the stick, but having listened to this debate on the matter of construction, I really do think that the clause as it stands is gobbledegook.

Lord Hunt of Kings Heath: No doubt the noble Lord, Lord Clement-Jones, will wish to comment on the drafting of the Bill. Surely the point is that Clause 8(1) applies to the position in relation to displays and defines the offence of which a person would be guilty. Clause 8(4)(a) and (b) seek to enable us to specify under which regulatory regime displays which also could be regarded as advertisements should be treated. That is why we need paragraph (b) as well as paragraph (a); that is, for the avoidance of any doubt.

I accept that the noble Lord may find the wording confusing, but it is a genuine attempt to ensure that there is clarity in this area. Throughout the Bill there have been discussions about the complications of interpretation. That is because of experience of the whole history of tobacco advertisements and the ingenuity of the tobacco companies in this area.

Lord Monson: Perhaps I may take this opportunity to respond to the point put by the noble Baroness, Lady O'Cathain. If the Bill were changed so as to make it illegal to promote tobacco products rather than simply to advertise them, the BBC and ITV would be outlawed from showing on television old films made in the 1930s, 1940s and 1950s. Those films invariably showed the hero and heroine smoking like chimneys, which would undoubtedly have the effect of promoting tobacco smoking among young people.

Lord Clement-Jones: As noble Lords might imagine, I shall not take full credit for the drafting of this Bill. However, I believe that I can help noble Lords in the discussion about it.

The Bill is called the "Tobacco Advertising and Promotion" Bill rather than the "Tobacco Advertising Bill". It covers a wider range of matters than pure advertising. It covers displays, brand stretching, sponsorship and so forth. While I bow to the experience of the noble Baroness, Lady O'Cathain, in the retailing area, I too have some experience in that field, as well as in others. The word "advertising" has a broad meaning when used in the clauses of this Bill and has been designed to do so.

Possibly there are occasions when one could consider a display to be a promotion as opposed to an advertisement. It is entirely possible that a court might take the view that a pile of product in a store is not an advertisement but simply a display of product. The matter is as simple as that.

Lord Campbell of Alloway: I am most grateful to the noble Lord. If the advertisement does not amount to a

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promotion, then no harm will have been done. It is a question of fact and a court would have to decide it. So where is the logic in what he has just said?

Lord Clement-Jones: With the greatest respect, there is huge logic in what I have just said. If a display is effectively a promotion and induces smokers to carry on smoking, to start up again or to smoke more, then that is precisely the mischief that we are trying to stop under the Bill. The Bill makes a distinction between advertising, between sponsorship, between display, between brand stretching and between a number of other areas. That is what it has been designed to do.

However, as the noble Lord, Lord Monson, pointed out, the Bill has not been drafted to say, "Right, every form of promotion is banned". In fact, the Bill is fairer than that. If the noble Lord, Lord Campbell, wishes us to introduce a one-clause Bill banning all possible forms of tobacco promotion, then I am sure we could consider that on a future occasion. I dare say that it would be perfectly acceptable to many noble Lords.

It is possible to pick these things over legally—I have been guilty of that myself on a number of occasions—and come to precisely the wrong conclusion. The Bill takes a common-sense approach.

The noble Baroness, Lady Noakes, introduced the amendment and challenged me on my statement on a previous Committee day. Of course there may well be some form of overlap between an advertisement and a display, and that is precisely what subsection (4) of Clause 8 is designed to cover. It is designed to ensure fairness. Of course those who are faced with the situation where they are had up by environmental or trading standards officers for using a display which could also be an advertisement need to know what would be the penalties for an offence. Thus the subsection has been drafted to ensure the clarity that we all seek in any legislation. We should all be quite clear about what are the penalties and so avoid any confusion in that respect.

However, what we cannot do is legislate in advance for whether in fact something is an advertisement or in fact it is a display. If cigarette packets are stacked into the shape of a large "M", that would be a difficult instance. However, what we need to know is, if such a display could be both, whether the display penalty or the advertisement penalty should be imposed. I do not think that that presents a great conundrum.

Baroness Noakes: I thank the noble Lord, Lord Clement-Jones, and the Minister for their responses. I shall read carefully what has been said. However, I continue to believe that this is an unnecessary provision. If the noble Lord, Lord Clement-Jones, believes that there may be some overlap then the simplest way to deal with it would be to say that anything that is treated as an advertisement should not also be treated as a display. That was proposed in one of the earlier amendments rejected by the noble Lord.

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Certain important additional points have been made by my noble friends Lady O'Cathain and Lord Campbell of Alloway. I shall reflect further on the debate before we reach the Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Noon

On Question, Whether Clause 8 shall stand part of the Bill?

The Viscount of Oxfuird: In speaking to this clause I declare an interest, as I did at Second Reading, as a member of the Lords and Commons Pipe and Cigar Smokers' Club.

The purpose of my opposition to Clause 8 standing part of the Bill has been made manifest by the debate on the amendments. The matter needs further and slightly more urgent consideration. We have the problem of the word "advertisement", which was discussed when we debated Clause 1 and which subsequently strayed into the purpose of Clause 8 in November. It is useful that we have this opportunity to consider Clause 8 specifically.

The noble Lord, Lord Hunt, explained earlier in Committee that Clause 8 was,


    "a preventative clause to give us power in future to produce regulations if there is evidence that the current position, for example on gantries, is being abused in any way".

He went on to state:


    "It may be difficult to anticipate what exactly would be in those particular regulations. The safeguard is that they are affirmative regulations".—[Official Report, 16/11/01; col. 818.]

That is quite important and has already been referred to in the debate today. I agree wholeheartedly with the Minister that it is difficult to anticipate what exactly will be in particular regulations, but I am not alone in considering that Clause 8 is confused, will be confusing and, sadly, is not necessary.

We need to look at the history of the clause. It would seem that it was conceived in the course of committee proceedings in the other place in the previous Parliament. In considering Clause 4, the opposition questioned what was a display of tobacco products at the point of sale and whether, possibly, a display could be or could become an advertisement. The outcome was the introduction of an amendment by the government—the addition of Clause 8. That amendment was added to the Bill without any debate as to its content. Far from clarifying matters, as we have heard from the subsequent debates, the issue is confused and confusing.

The Explanatory Notes to subsection (4) of Clause 8 explain that any regulations made under Clause 8 must clarify how displays which amount to advertisements are to be regulated. They go on to state:


    "Given that the Government would have regulated both for advertising (under clause 4 subsection (2)) and displays (under clause 8 subsection (1)) at the point of sale, it would be essential to specify under which regulatory regime displays which also amounted to advertisements were to be treated".

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This matter was highlighted by the Select Committee on Delegated Powers and Deregulation. That Select Committee is respected in all corners of the House. In its eleventh report, it described the power given to Ministers by Clause 8 as a "somewhat puzzling power". That is a polite understatement. The Select Committee went on to state:


    "The puzzle is made more difficult by subsection (4), which provides that 'The regulations must make provision for a display which also amounts to an advertisement to be treated for the purpose of offences under the [Bill]' as one or other but not both".

Ultimately, the Select Committee considered that the provision of the affirmative procedure was a sufficient safeguard for this "somewhat puzzling power". This clause is not necessary or appropriate.


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