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Lord Skelmersdale: My Lords, before the noble Lord sits down, can he explain how a logo incorporating the words, "Smoke a Few", could possibly be legitimised by my noble friend's amendment? Proposed new subsection (2)(c) states:
- "a logo or other graphic representation of those names".
Lord Clement-Jones: My Lords, I am sure that the heralds could devise a suitable shield—perhaps with a cigarette-in-chief and ghouls supported by smoking attendants—which could contain the company name. I am sure that they would have a great deal of fun producing it. I am afraid that I believe that the proposal could give rise to such mischief.
Earl Howe: My Lords, I am grateful to all noble Lords who have spoken to the amendment, which I moved in all seriousness.
It was interesting to hear the noble Lord, Lord Peston, and the noble Baroness, Lady Jay, express the view that letterheads do not as such constitute advertisements and that nobody would ever dream that they might. I am grateful to them for doing so. However, that view contrasts strikingly with the view expressed in Committee by the noble Lord, Lord Clement-Jones, when he said that letterheads could in certain circumstances constitute an advertisement, depending on the facts of the case. He also instanced an example just now in which that might be the case.
That suggests that the noble Lord believes that in practice a line can be drawn somewhere. I suggest that it should be drawn in the Bill. It may be a rough and ready line but it would provide legal certainty. Without that, we would be saying to tobacco companies that in certain undefined circumstances—we would not tell them what they were—they would lay themselves open to prosecution for using their name as a logo in ordinary business communications. That is not reasonable. If we do not create legal certainty at this very basic level in the Bill, we should
be saying that it is fair to catch out the tobacco companies with the benefit of hindsight and in whatever way we want. I deplore that.
Lord Peston: My Lords, I seek factual clarification from the noble Earl. I am trying very hard to follow his argument. Is he actually saying that Benson & Hedges is uncertain whether putting "Benson & Hedges" at the top of its writing paper constitutes a criminal offence? I am rather lost. Could companies that have a wealth of lawyers to advise them really be saying, "We are desperately uncertain, because of these laws, about what we can put on our writing paper"? I am willing to be convinced, but I cannot get my mind around the factual possibility.
Earl Howe: My Lords, if Benson & Hedges is not uncertain, it should be—by virtue of the remarks made by the noble Lord, Lord Clement-Jones, in Committee. He said that there were circumstances in which the use of a company's name on its letterhead could constitute an advertisement, depending on how it was printed.
Lord Clement-Jones: My Lords, I gave further examples in which the use of a name in a particular way could also constitute an advertisement. That is precisely why the word "advertisement" is used with its natural meaning in the Bill. It makes common sense to explain what those circumstances are. I gave the example of a company secretary in those circumstances, who would have to look at a piece of stationery. If she could not apply the relevant test, she would not be much of a company secretary.
Earl Howe: My Lords, the noble Lord appears to suggest that this is coach-and-horses territory. I do not accept that that is the case, but I do accept that tobacco companies are ingenious at finding a way through legislation. They might be ingenious at finding a type of letterhead that looked more promotional than others. But so what? In the context of the Bill that is de minimis in the scheme of things. Is he really saying that the Bill's definitions have to be so broad and sweeping that they cover every possible eventuality? Would that include the design of a name sign outside a set of offices or the style in which a company name appears on an invoice? I suggest to him that it is possible to lose sight of what is proportionate. We have had an interesting debate and the Minister has usefully clarified the Bill. I am grateful to him for the trouble that he took in doing so and to the noble Lord, Lord Clement-Jones, for having clarified his line of thinking. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 6 [Specialist tobacconists]:
1.45 p.m.
Lord Clement-Jones moved Amendment No. 33:
- Page 3, line 14, leave out from beginning to "the" in line 15 and insert "A person does not commit an offence under section 2 if".
On Question, amendment agreed to.
Lord Monson moved Amendment No. 34:
- Page 3, line 23, leave out from "things)" to end of line 25 and insert "on which premises more than 150 brands or brand variants of tobacco products are stocked and available for sale".
The noble Lord said: My Lords, when my earlier and fairly similar amendment, which was based on the experience in the Netherlands, was discussed in Committee on 7th December, the Minister said that he felt a trip to the Netherlands coming on. I do not know whether he ever found the time for such a trip or whether he managed to undertake any research into Dutch advertising legislation as it relates to specialist tobacconists.
This amendment gives the Minister and the noble Lord, Lord Clement-Jones, an opportunity to reveal whether further consideration has been given to my contention that sales turnover is not the best yardstick for qualification as a specialist tobacconist. A visible means of establishing that a retailer is a specialist tobacconist is, I submit, preferable from all standpoints. That would make enforcement much simpler and easier; it would avoid crawling laboriously through trading accounts and—I resist the temptation to make too many topical quips about Enron and the creative accounting practices of certain large American corporations and, probably, a number of British and continental companies as well—it would avoid the involvement of, or reliance on, the work of accountants and auditors.
In seeking to meet the reservations expressed in Committee, I increased the number of brands and their variants that must be on offer from 100 to 150. I did so in order to raise the threshold beyond the number that some of the larger tobacco retailers who are not specialist tobacconists might stock. It is certainly not my intention to accommodate anyone other than genuine specialist tobacconists.
I understand that my amendment in Committee provoked an hysterical reaction from ASH. Of course, hysterical reactions are that organisation's stock in trade. ASH apparently claims that the proposal involves the risk that retailers would add to the product range that they stock simply to qualify as a specialist tobacconist. Frankly, that would be ridiculous, given the very minor concession that Clause 6 provides. It simply would not be worth the expense. I also suggest that retailers who are capable of that sort of dishonesty are just as capable of adjusting their trading accounts to qualify under the turnover yardstick that is currently in the Bill.
My objective is the simplicity that is appropriate to such a minor concession as Clause 6 provides—simplicity in application and simplicity in enforcement. I beg to move.
Lord Hunt of Kings Heath: My Lords, the noble Lord returns to a matter that he raised in Committee. I am afraid that while I have been allowed out once to Brussels, I have not been able to find myself a departmental-sponsored trip to the Netherlands, although we have inquired. I shall inform noble Lords of the position that we believe arises in that country.
I also acknowledge that the noble Lord has raised the hurdle for qualifying as a specialist tobacconist from 100 to 150 brands or brand variants.The intention under the Bill as currently drafted is that a person must derive half of his sales on the premises from pipe tobacco, snuff, cigars and smoking accessories in order to be classed as a specialist tobacconist. That is reasonable because if he derives a substantial part of his income from those products, he is allowed to advertise specialist products in the shop or affixed to the outside of the premises. I believe that the special consideration being given to specialist tobacconists indicates that the noble Lord, Lord Clement-Jones, has taken a proportionate and balanced approach and that he wishes to safeguard the position of selected specialist tobacconists.
I believe that the test suggested by the noble Lord, Lord Monson, is rather more arbitrary than that set by the noble Lord, Lord Clement-Jones. I give two examples, The first is that some businesses may stock more than 150 brands but find that sales of each brand are low and that the bulk of their income comes from non-tobacco items. In that case, they will not be substantially dependent on tobacco sales and will not particularly need the right to advertise in-store.
The second relates to the point that ASH raised and to which the noble Lord, Lord Monson, took exception. But if the test is having 150 brands in the store, I believe that that could drive a coach and horses through the legislation. It would be very easy for there to be a rapid expansion in the number of shops classified as specialist tobacconists. It would be relatively easy to produce 150 brands for sale.
We need to return to what the Bill seeks to do—that is, to ban tobacco advertising. Clause 6 allows limited concessions for specialist shops in order to take into account the needs of small businesses and not to place undue burdens on them. The Bill does that on the basis of sales. If we move away from sales to a test based on the number of brands which a shop carries, then, as I said, we shall create a loophole whereby potentially anyone can call themselves a tobacconist and claim to avail themselves of the provisions of Clause 6.
I know that the noble Lord suggested that a test based on sales would be difficult to monitor. I accept that tobacconists will have to keep records to show that their sales of cigars, pipe tobacco, snuff and smoking accessories reach the required level. However, I do not believe that that is an unreasonably onerous burden for them. As a normal part of business, shops keep records of sales. If they want to take advantage of provisions allowing some in-shop advertising by genuine specialist tobacconists, then such businesses will put in place arrangements to show that they meet the test.
So far as concerns the Netherlands, it is my understanding that legislation containing such a provision is before the Dutch parliament at present. It has not yet been tested in practice and, therefore, my case rests on our belief that the Bill as it stands provides a reasonable test which is not an unreasonable burden on the specialist tobacconist
shops. It does not provide the type of loophole which I fear the noble Lord's amendment would produce in the Bill.
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