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Lord Skelmersdale: My Lords, I know that this is the Report stage, but I cannot forbear interrupting the Minister by saying, "Not if I have anything to do with it"!
Lord Hunt of Kings Heath: My Lords, in that case I look forward to interesting discussions. There are two points to be made. First, these matters are of a different order. Clause 7 is in the Bill because we know that the pace of change in relation to electronic technology is very fast indeed. Even if tobacco smoking could be made much safer or absolutely safe, such products would not be known to be safe for many years because of the necessity of undertaking research through the lifetime of people using the safer products. These events are of a different scale and order.
I also argue that a safer tobacco product is questionable. As noble Lords will know, there has been development of what have been promoted as safer brands: light, mild and low tar and other descriptors. The danger is that they give the appearance, but not the reality, of being less harmful. I believe that there are great dangers, particularly given the current state of knowledge, in promoting the use of so-called safer products. The tar and nicotine content of the tobacco in a light or a mild cigarette is frequently no lower, or may even be higher, than in a normal cigarette. Even if at some stage in the future the tobacco industry made claims that it had produced a safer or a safe cigarette, I believe that it would be many years before that could be proven effectively.
On that basis it appears to me that the Bill, as it currently stands, meets the circumstances of the times. Therefore, I do not recommend that the noble Lord, Lord Clement-Jones, accepts the amendments.
Lord Clement-Jones: My Lords, I congratulate both noble Lords on their ingenuity. The noble Lord, Lord Monson, made a neat attempt to turn the tables in terms of producing his own Clause 7 which suited his purpose rather better and the noble Lord, Lord Skelmersdale, has exercised his imagination with his amendment.
As both noble Lords have said, this issue boils down to what one should do if, at some point in the future, the tobacco industry somehow comes up with a new product or a version of an existing product that is not harmful to health. I shall resist the temptation to debate why on earth the tobacco industry would do that, when it continues to refuse to admit that the products that it already manufactures cause any diseases.
Today is the first time that I have seen a senior executive admit that, as Mr Martin Broughton has on the front page of The Times. What a notable occasion this is. We should all cheer, perhaps not three times, but certainly twice. That is a notable statement. But, in relation to senior executives in the tobacco industry, that is the exception rather than the rule. As your
Lordships no doubt know, the Health Select Committee in another place has certainly had much to say on the way in which the tobacco industry has buried its head in the sand on this subject.The argument of the noble Lords, Lord Monson and Lord Skelmersdale, is that if tobacco is rendered harmless there is no continued justification for banning its advertising. I understand that argument, but I certainly do not agree with it for two principal reasons. First, even if such a product were to be invented tomorrow, there is no reason to believe that it would replace existing brands, or that there would even be a substantial demand for it, any more than the advent of alcohol-free beer had any substantial effect on the sales of alcoholic drinks. Instead, I imagine that we would see it branded similarly to existing cigarettes. We may see "Camel Harmless" or "Silk Cut Ultra-Low Death Rate" cigarettes being released on to an unsuspecting public. Advertisements for those brand variants would also advertise the harmful, and more widespread variant, in the same way that advertisements for Marlboro clothing are used to advertise Marlboro cigarettes. That would completely undermine the good that this legislation will do.
The Minister discussed whether there was such a thing as a safer cigarette. Products such as low tar cigarettes tend not to be any safer. People smoke them harder to get the same quantity of nicotine into the blood stream. I dare say that a number of smokers in this Chamber can testify to that fact. The tobacco industry denies that mild or light, and so on, are health claims. Those cigarettes are no safer. That argument holds true no matter how low the tar and nicotine content falls.
Secondly, I do not believe that this amendment should be accepted for the simple reason that the circumstances with which it is designed to deal will almost certainly never arise. Apart from increased levels of mechanisation, tobacco production has hardly changed in the past 50 years. The cigarettes smoked today have almost exactly the same constitution as they had decades ago. The pace of change in the tobacco industry is glacial. Forty years after the first Royal College of Physicians report into the link between smoking and disease, the manufacturers do not accept that their products cause disease. Only now, through the words of people like Martin Broughton, are they beginning to admit that nicotine may be addictive, albeit in the same way that exercise can be. There is simply no incentive to produce a harmless tobacco product, even if the technology existed to do so. That would be an admission that their existing products are harmful.
It is unnecessary to give Ministers this power, and I am certainly not a fan of giving Ministers more powers than they absolutely need to get a job done. The power proposed in the amendment, as the Minister pointed out, is very different from the power given under Clause 7 of the Bill. Given the incredibly fast pace of change in electronic communications, it is probable that this power will have to be used, even if we cannot predict in exactly what way. The power under Clause 7 is a necessary tool for the Minister to do the job that
we are legislating for him to do. That is not the case with these amendments which, in all probability, will never be applicable. The technology that would make it relevant does not exist, and even if it did, there is no reason why the industry would choose to take advantage of it. Therefore, I urge the noble Lord to withdraw his amendment.
Lord Geddes: My Lords, in reply to the noble Lord—
Lord Hunt of Kings Heath: My Lords, I point out to the noble Lord that we are on Report.
Lord Monson: My Lords, it would have been useful to know what the noble Lord, Lord Geddes, was going to say. However, I am grateful to the noble Lord, Lord Skelmersdale. His amendments dot the "i"s and cross the "t"s to a slightly greater extent than mine. He also fleshed out the skeleton of my argument most successfully.
The noble Lord, Lord Clement-Jones, is extremely pessimistic. He tried to draw a comparison with low alcohol beer. There are two reasons why that has not taken off in the way it should. First, it is not favourably taxed by the Government. If the Government really want to push low alcohol beer they should tax it at a much more favourable rate than strong beer. Secondly, they have not yet succeeded in making it taste as good as the higher strength stuff, and the same goes for wine. It may happen in the future. It may be possible to make extremely low tar and low nicotine tobacco taste as good as the higher strength stuff.
The Minister, too, was pessimistic. The point is that, were one of these amendments to be accepted, there would be no requirement on a Minister to make use of the powers. They would be reserve powers. However, in the absence of any support from other quarters of the House, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Prohibition of tobacco advertising]:
[Amendments Nos. 4 and 5 not moved.]
Clause 4 [Advertising: exclusions]:
Lord Faulkner of Worcester moved Amendment No. 5A:
- Page 2, line 13, leave out from "made" to end of line 15 and insert "in the course of a business which is part of the tobacco trade, and for the purposes of that trade, and directed solely at persons who—
The noble Lord said: My Lords, in moving Amendment No. 5A, with the leave of the House I shall speak also to Amendments Nos. 8A and 38.
The purpose of all three amendments is to ensure that loopholes are not created in terms of advertising exclusions in the case of Amendments Nos. 5A and 8A, or of free distributions to the trade which are covered by Amendment No. 38.
Under Clause 4(1)(a) it is not an offence to produce a tobacco advertisement,
As the clause is currently drafted, that could mean anyone who is selling cigarettes anywhere. It could be a senior buyer for Sainsbury's or the person in the tobacco kiosk at Sainsbury's who only works there one day a month or who may be working on tobacco products one week but on the cheese counter the next. I am sure it was never the intention of the noble Lord, Lord Clement-Jones, to include those sorts of people as part of the tobacco trade.
I accept that tobacco companies will wish to send materials to those who have a substantial involvement in the tobacco trade. But it is not acceptable for them to be able to bombard those who would not consider themselves to be part of the tobacco trade but would, for example, think of themselves as general retail sellers.
We need to draw a distinction between, for example, the specialist tobacconist and the part-time worker in the supermarket. Numbers working in the retail sector are increasing and many of those who work in supermarkets are young people, so to allow tobacco companies this exemption would leave them with a huge loophole. And we know from 50 years' experience how tobacco companies behave. They exploit even the smallest opportunity to target the young. I have a cutting from Marketing Magazine, dated as recently as 24th January, which says,
So there needs to be a line drawn between those who obviously need to receive communications from the tobacco companies and those for whom it is not a necessary part of their job. My amendment distinguishes between those who are responsible for taking decisions on behalf of the business about the purchase of tobacco products—the buyers and those above them in the management chain—and those who would not describe themselves as being in the tobacco trade at all, and quite clearly are not, but might find themselves being so regarded by the tobacco companies.
Amendment No. 38, which is grouped with the first two, seeks to narrow the exemption in Clause 9(3) in a similar way to the way in which I have sought to clarify
There is, however, a danger in the current drafting of the Bill that tobacco companies could use that exemption to promote tobacco products through free distributions or other enticements to anyone involved in selling tobacco products. I do not dispute that promoting products is a bona fide activity. But we need to make clear how far we want that to reach and the arguments which apply to advertising communications apply equally here. That is why I propose that we amend Clause 9 to make the exemption specific to those who, in the course of their business, are responsible for making purchases of tobacco products and their managers. I beg to move.
Lord Skelmersdale: My Lords, I appreciate the remarks made by the noble Lord, Lord Faulkner, in connection with this amendment. In previous stages of the Bill we did not debate what is meant by "people engaged in the trade".
I am sure that the noble Lord, Lord Clement-Jones, will repeat his oft-used phrase, "It has its natural meaning". Its natural meaning, to me, means that a person working in a shop or supermarket is not engaged in the tobacco trade. It is quite right that the noble Lord, Lord Faulkner, should seek to make that absolutely clear, which he does in these amendments. I shall be extremely interested to hear what both the noble Lord, Lord Clement-Jones, and the Minister say about this group of amendments, which I applaud.
(i) are engaged in, or employed by, a business which is also part of that trade, and
(ii) fall within subsection (1A),
in their capacity as such persons,"
"if it is, or is contained in, a communication made for the purposes of the tobacco trade and directed solely at persons engaged in any capacity in that trade (even if they are also engaged in another trade)".
The first two amendments narrow the exemption in Clause 4(1)(a) and their purpose is to specify what exactly is meant when we talk about "persons engaged in the trade", for the term "trade" is not defined.
"Some of the world's biggest tobacco companies are taking legal advice in an attempt to exploit potential loopholes in international efforts to restrict cigarette advertising and sponsorship. Tobacco industry sources say manufacturers are analysing proposed legislation around the world to see how they can delay its implementation or circumvent its provisions by running alternative promotional activity".
11.45 a.m.
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