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Lord Clement-Jones: My Lords, I thank the noble Lord, Lord Palmer, for putting forward his amendment. I understand that there is no hidden motive, but that is not sufficient to elicit support for it. I do not believe that the amendment should be accepted. The free or discounted distribution of
cigarettes or other tobacco products is a way in which tobacco companies market their products. We should treat that form of promotion in exactly the same way as any other type of tobacco advertising or promotion. I see no compelling reason to make an exception for this kind of promotion rather than any other.Noble Lords may well argue that as a form of promotion it is probably of interest only to existing smokers and, therefore, it should be exempted. However, in response I argue that even if one accepts that that is true, this legislation is as much about helping current smokers to quit as it is about preventing young people from taking up smoking in the first place.
Tobacco companies also use coupon schemes, such as the ones that the noble Lord, Lord Palmer, wishes to exempt, in order to try to keep smokers hooked who otherwise may be about to give up or who are at least trying to give up. If such promotions are solely about brand share, we would expect to see them spread equally around the year. Instead, we see them concentrated, as with all tobacco advertising promotions, into the time of year when smokers are most likely to consider quitting: New Year, the beginning of Lent, National No Smoking Day and so on.
There is nothing unique about this kind of promotion that justifies an exception being made in the legislation. Therefore, I urge the noble Lord to withdraw his amendment.
Perhaps, with the Minister, I can give greater comfort to the noble Lord in terms of Amendment No. 39. This legislation is not about banning the manufacture and distribution of tobacco products, or about banning market research into potential new products in the future. That is a legitimate part of their business and will remain so. This Bill is about banning the advertising and promotion, for the good of public health, a product which kills an enormous number of people.
There are two different types of free distribution being debated. One which will be covered by the legislation is free distribution by tobacco companies in order to promote their products. For example, one thinks of the Marlboro cowgirlsyoung women who distribute free Marlboro to people in bars and night clubs. That has both the intention and effect of promoting cigarettes and will be banned. However, the other is a completely different proposition. In that case the point of the distribution is to find out more about proposed new products, not to promote them. It has neither the intention nor the effect of promoting tobacco products and as such will not be covered by this legislation. In essence, this amendment describes what will happen following the passage of the Bill even without the adoption of the amendment.
I am not keen on adding further to this legislation when its purpose and effect are entirely clear. I believe that we do not need Amendment No. 37 in order to make it absolutely clear that that type of market
research is entirely legitimate and can continue in the future. I hope therefore that the noble Lord will not press his amendment.
Lord Palmer: My Lords, I am disappointed to have my hopes dashed. I thank the noble Lords, Lord Filkin and Lord Clement-Jones, for their comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Viscount Simon): My Lords, in calling Amendment No. 38 I advise your Lordships that if it is agreed to, I cannot call Amendments Nos. 39 or 40 because of pre-emption.
Lord Faulkner of Worcester moved Amendment No. 38:
On Question, amendment agreed to.
Lord Clement-Jones moved Amendments Nos. 41 to 45:
The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 41 to 45 en bloc. I beg to move.
On Question, amendments agreed to.
Clause 10 [Prohibition of sponsorship]:
Lord Luke moved Amendment No. 46:
The noble Lord said: My Lords, very briefly, my noble friend Lord Liverpool and I both believe that the intent behind Amendment No. 46 was covered in the response given by the noble Lord, Lord Clement-Jones, to Amendment No. 40. I simply ask for reassurance on that matter. I beg to move.
Lord Hunt of Kings Heath: My Lords, perhaps we should listen to the noble Lord, Lord Clement-Jones. My understanding is that the kind of situation described in the private dinner party where cigars are handed out was covered in our debate on the Motion of the noble Earl, Lord Liverpool, on Amendment No. 40.
Lord Clement-Jones: My Lords, I am happy to repeat, and no doubt it will appear in Hansard tomorrow, that, as I said in answer to Amendment No. 40, the kind of private event at which cigars are handed out is not covered and is not intended to be covered by the Bill.
Lord Luke: My Lords, I am grateful to the noble Lords. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clement-Jones moved Amendment No. 47:
On Question, amendment agreed to.
Lord Clement-Jones moved Amendments Nos. 48 to 52:
The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 48 to 52 en bloc. I beg to move.
On Question, amendments agreed to.
Earl Howe moved Amendment No. 53:
The noble Earl said: My Lords, I tabled Amendment No. 53 as a means of raising with the Minister my concerns over a matter which, strictly speaking, is not directly related to the text of the Bill. However, it is highly relevant to the substance and purpose of this clause.
Noble Lords may remember that when we debated the issue of brand sharing in Committee, I raised the case of Alfred Dunhill Limited. Alfred Dunhill is a luxury goods company and has traded as such for more than 100 years. It does not manufacture cigarettes nor indeed any tobacco product. It does, however, share a brand name with a cigarette manufacturer.
Alfred Dunhill Limited is deeply concerned about the text of the draft EU directive on tobacco advertising. The current wording simply requires member states to prohibit advertising intended to promote smoking. One definition under consideration is the following:
Alfred Dunhill would have no problem with that, while tobacco companies that have diversified under the same brand name would presumably be caught by it. However, if a national legislature were to add the words, "or effect" after the word "aim", so that it read,
A directive is nominally intended to facilitate the working of the internal market. It will not do so in the case of Alfred Dunhill if it does not cover shared brands. It is conceivable that Alfred Dunhill might find itself in the anomalous position of being free legally to promote its products in the UK but not in, say, Belgium or France. That is because the exceptions to the regulations which the Secretary of State may one day adopt under Clause 11 could conflict with the laws made in due course by other member states when they come to implement the directive.
While I understand that the Commission does not want the directive to be complicated by the brand-sharing issue, it is absolutely inevitable. But if it is not covered in some appropriate way, the result will be an endless round of litigation. I cannot believe that the Government contemplate that prospect with equanimity.
I should be glad to hear from the Minister what approach the Government are adopting to the issue of bone fide brand-sharing in their discussions with the Commission. It would be very unfortunate if Alfred Dunhill found itself having to lobby up to 14 more parliaments to amend their secondary legislation so that it could continue to trade. It would be even more unfortunate if different legal barriers were to be erected by different member states in respect of products that have absolutely no tobacco content whatever. That would not only be unfair but damaging to British economic interests.
I hope that the Minister can issue some reassurance to me that the Government have these matters very much in mind in their discussions with the Commission and that they will be pressing the Commission to come forward with a text that includes an appropriate form of brand-sharing provision. I beg to move.
Lord Peston: My Lords, I am delighted that the noble Earl, Lord Howe, has raised this matter. I look forward very much to hearing whether the Minister believes that the problem is solvable. I am as scathing as anyone about the tobacco industry, but I accept that in this case Dunhill appears to be an innocent party. It would certainly be wrong that just because there are Dunhill cigarettesI believe that there areAlfred Dunhill should not be able to promote its main products both here and abroad. So I am very sympathetic to what the noble Earl is saying.
What has interested me ever since the problem emerged is whether one can protect a firm like that while not producingto use today's clichéa "coach and horses" state of affairs here. What troubles me is whether the actual producers, or tobacco firms, could produce institutional arrangements whereby they actually claimed legally that their tobacco businesses were being made legally separate. Therefore, they could still engage in activities on other products, and so on.
In other words, I am convinced that the noble Earl is right that we must find a solution to this problem in terms of the Bill, not only abroad but here. What troubles me a little is that I cannot quite see how to do it. It may well be that the Minister has solved the problem and will tell us what the solution is.
"(3) No offence is committed under subsection (1) if
(a) the business referred to in subsection (1) is part of the tobacco trade,
(b) the product or coupon is given away for the purposes of that trade,
(c) each person to whom it is given
(i) is engaged in, or employed by, a business which is also part of the tobacco trade, and
(ii) falls within subsection (3A), and
(d) the product or coupon is given to each such person in his capacity as such a person.
(3A) A person falls within this subsection if
(a) he is responsible for making decisions on behalf of the business referred to in subsection (3)(c)(i) about the purchase of tobacco products which are to be sold in the course of that business,
(b) he occupies a position in the management structure of the business in question which is equivalent in seniority to, or of greater seniority than, that of any such person, or
(c) he is the person who, or is a member of the board of directors or other body of persons (however described) which, is responsible for the conduct of the business in question."
Page 4, line 23, leave out from beginning to end of line 24 and insert "A person does not commit an offence under this section"
Page 4, line 25, leave out "if" and insert "where"
Page 4, line 26, leave out "that" and insert "if"
Page 4, line 28, leave out "if" and insert "where"
Page 4, line 29, leave out "that" and insert "if".
Page 5, line 8, at end insert
"( ) No offence is committed under this section in relation to a tobacco sponsorship agreement if the purpose or effect of anything done under the agreement is to promote a tobacco product to persons engaged in the tobacco trade (even if they are also engaged in another trade)."
Page 5, line 9, leave out from beginning to end of line 10 and insert "A person does not commit an offence under this section"
Page 5, line 11, leave out "if" and insert "where"
Page 5, line 13, leave out first "that" and insert "if"
Page 5, line 15, leave out "if" and insert "where"
Page 5, line 17, leave out first "that" and insert "if"
Page 5, line 18, leave out from beginning to "he" in line 19 and insert "A person does not commit an offence under this section if"
Page 5, line 35, leave out ", or whose effect is to do so"
"Advertising means any form of commercial communication with the aim of promoting a tobacco product".
"with the aim or effect of promoting a tobacco product",
as indeed we see in Clauses 1 and 11 of this Bill, Alfred Dunhill would find itself in great difficulty simply by virtue of the fact that "Dunhill" is a well-known cigarette. Unless a specific derogation is stipulated, or at least permitted, in the directive to cover this kind of case, the problems caused to companies such as Alfred Dunhill will be severe. A derogation of this nature appeared in the tobacco advertising directive 98/43/EC which was subsequently annulled.
2.15 p.m.
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