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11 Mar 2009 : Column GC439

Grand Committee

Wednesday, 11 March 2009.

Health Bill [HL]

Committee (6th Day)

3.45 pm

The Deputy Chairman of Committees (Lord Colwyn): There may be Divisions in the Chamber while we are sitting. If that is so, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Amendment 105

Moved by Lord Patel

105: After Clause 22, insert the following new Clause—

“Plain packaging

(1) The Secretary of State may make regulations imposing such requirements as he considers necessary prohibiting or restricting the sale or supply of tobacco products otherwise than in packages or packaging which comply with the regulations.

(2) The regulations made by the Secretary of State under subsection (1) may impose such requirements as the Secretary of State considers necessary or expedient with respect to any one or more of the following particulars—

(a) the colour of the packages or packaging;

(b) the shape and material of the packages or packaging;

(c) distinctive marks displayed on the packages or packaging;

(d) trade marks or registered trade marks displayed on the packages or packaging;

(e) the labelling in any respect of packages, packaging or tobacco products, or associated with packages, packaging or tobacco products;

(f) the contents inside the packages or packaging, in addition to tobacco products; and

(g) any other particulars as may be prescribed by the Secretary of State.

(3) Regulations made under this section may provide that packages or packaging of any such description, or falling within any such class, as may be specified in the regulations shall not, except in such circumstances (if any) as may be so specified, be of any such colour or shape, or display any such mark or trade mark, or any other particulars as may be so specified.

(4) No person shall, in the course of a business carried on by him, sell or supply, or have in his possession for the sale or supply any tobacco product, package, or packaging in such circumstances as to contravene any requirements imposed by regulations under this section which are applicable to that tobacco product, package, or packaging.

(5) Any regulations made under this section may provide that any person who contravenes the regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding a level on the standard scale specified in regulations made by the Secretary of State.

(6) Before making any regulations under this section, the Secretary of State shall consult such persons as are likely to him to be substantially affected by those regulations.

(7) For the purposes of this Act—

“trade mark” and “registered trade mark” shall have the same meaning as in section 1 of the Trade Marks Act 1994 (c. 26);

“package” shall mean the packet, container, wrapping or other receptacle which contains or is to contain the tobacco products;

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“packaging” shall mean all products made of any material to be used for the containment, protection, handling, transporting, delivery, sale and presentation of the packages;

“tobacco product” shall include cigarettes, cigars and any other product containing tobacco and intended for oral or nasal use and smoking mixtures intended as a substitute for tobacco, and the expression “cigarettes” includes cut tobacco rolled up in paper, tobacco leaf, or other material in such form as to be capable of immediate use for smoking and cigarette papers, tubes and filters.

(8) Regulations made by the Secretary of State under this section—

(a) may make different provision for different cases; and

(b) may contain such incidental, supplemental, consequential and transitional provision as the Secretary of State thinks fit.

(9) The powers of the Secretary of State under this subsection shall be exercisable by statutory instrument which shall be subject to annulment by a resolution of either House of Parliament.”

Lord Patel: My amendment relates to the plain packaging of tobacco products and deals with whether packaging is a form of advertising. I declare an interest as vice-president of a charity called Quit, which helps people to quit smoking.

My amendment seeks to make plain packaging mandatory for all tobacco products, removing all branding and leaving the health warnings and, in plain text, the name of the product. Tobacco packaging, sometimes called the silent salesman, has always been an important part of tobacco marketing, communicating attributes such as style and sophistication to the would-be smokers.

As some of your Lordships may have noticed, I was interested by an article from the Times of Monday 9 March, which said: “Branding on cigarette packs under fire from MPs”. I was glad to see the article say that the noble Lord, Lord Patel of Bradford, was going to move this amendment. More importantly, the writer of the article referred to:

“Tobacco companies—for whom branded packs are the only remaining form of advertising in the UK”.

I shall not quote further, but it interesting that this comes not just from me but from journalists.

Tobacco branding should be prohibited because it is plainly advertising. It recruits young people into a lifetime addiction and misleads smokers about the relative safety of different brands. So is it advertising? According to legal opinion from Sir Richard Buxton, a former Lord Justice of Appeal, the packaging being used by the tobacco industry meets the definition set out by the 2003 EU directive for tobacco products, which is,

Since the advertising ban of 2002, the pack has acquired even greater importance as a tool that the tobacco industry uses to recruit smokers to replace those who have quit or died. The ban on advertising therefore did not lead to an end of the influence of the cigarette brand but rather the displacing of its potency to the cigarette pack.

There are many examples of how the tobacco industry has risen to the challenge of carrying the whole message on the pack. Examples include Silk Cut; the number

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of advertised variants within the Silk Cut “brand family” has doubled since the advertising ban, allowing the logo to appear repeatedly in a variety of colours. They have also used creative packaging, such as the “perfume pack”, as it is called, to target particular markets. Camel is another brand, marketed as a “natural flavour”. This new youth-oriented brand variant was launched in 2007. Speaking to the trade press, Jeremy Blackburn, communications manager of Gallaher Group, said:

“Camel is the smoking style statement for young adult smokers”.

Then there is the Lambert and Butler “celebration pack”. When this was introduced into the market, Imperial Tobacco was able to see just how much difference packaging made; with nothing else changing in the marketing mix, it added £60 million in its sales.

I remember when I used to smoke some 38 years ago that brands such as Peter Stuyvesant were my favourite, because the cigarettes were slightly longer. At weekends occasionally, if you could afford it, you bought what were known as black Sobranies to the student ball, for example, to impress ladies. There were “cocktail” Sobranies, with green, black, yellow and cream-coloured cigarettes. It did not make any difference to the ladies, but they were certainly cool to carry.

The cigarette pack is plainly a sophisticated form of advertising. It seduces young people into a lifetime of addiction. The majority of smokers start smoking before they are 18. The younger a smoker starts to smoke, the more addicted they will become by adulthood, the harder they will find it to quit, and the more likely it is that they will die from the habit. Findings from a UK study, reported in a 2008 report for Cancer Research UK, showed that the number of cigarette brands that 15 year-olds could recall increased the chances of them expressing an interest in trying smoking by 35 per cent for each additional brand. Research conducted for ASH by the University of Nottingham has further shown that young people found branded packs more attractive than plain packs. That demonstrates the appeal of packaging and branding independent of the appeal of the tobacco product itself.

Branding on cigarette packs has a powerful impact on young people, and different brands are used to perpetuate and reinforce the ideas that young people have about themselves. Therefore they become powerfully totemic in themselves. Tobacco branding is designed to confer status and sense of belonging. This is a quotation from a young person in the north of England that was gathered for the recent Department of Health consultation on tobacco control:

“At school the type of cigarettes you smoked depended on what group you were in. The ‘cool kids’ smoked Lambert and Butler because they liked the silver packet and the cards that came with it, and the people who liked rock music smoked Marlboro. The ‘Goths’ smoked John Player Special because of the black packets. What you smoked said a lot about you and it was all down to what was on the packet”.

Packaging misleads smokers about the relative safety of different brands. The use of branding, particularly the colours or livery on packs, also misleads smokers into thinking that their favoured brand or brand variant is a safer product than other brands. With the removal

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of wording, the tobacco industry has switched to colour coding. In the Nottingham study, young people were shown pairs of cigarette packs in the same brand family and asked which cigarettes were lower tar, less harmful to health and more attractive. Young people and the adult smokers were more likely to perceive the lighter coloured packs as less harmful and less addictive.

Large, bold, written health warnings are effective in motivating smokers to quit, and new picture warnings may be even more effective. However, tobacco branding lessens the impact of the warning message, as colourful branding detracts attention from health warnings.

If young people and smokers are to be given a real, free and informed choice about whether they smoke, we should prohibit branding as it inhibits that choice. On-pack branding undermines the existing tobacco advertising law, misleading smokers and continuing to promote tobacco. It dilutes the impact of health warnings designed to ensure that smokers were making a more informed choice. Most importantly, it seduces young people into taking up a habit that in their youth they see as something that expresses who they are, but in their adulthood could kill them.

Lord Walton of Detchant: I have added my name to the amendment, to which I give my strong support, because packaging is the most ubiquitous form of tobacco advertising. At Second Reading, I said that I had reservations about cigarettes being sold in plain packaging because I felt that it would not help individuals to identify which cigarettes had the greatest and lowest nicotine content. However, I discovered that my comments were ill advised; for some considerable time, it has been illegal for anyone to identify a brand as “mild” or “light”, so that reservation is no longer valid.

Since the introduction of the Tobacco Advertising and Promotion Act 2002, packaging has become increasingly sophisticated and appealing, with careful use of imagery, colours and design. Each smoker displays their brand every time they take their pack out to smoke. Cigarette packaging has been called “the silent salesman”. Since 2002, the number of cigarette brand variants has more than doubled as tobacco companies increasingly use the pack itself as a promotional tool.

The importance of pack design in branding and promotion is explicitly recognised by the tobacco industry in its own documents. For instance, Imperial Tobacco in the UK has stated that,

Imperial’s global brand director, Geoff Good, said in December 2006 that pack redesign had been worth,

That is a compelling comment.

Members of the Committee may not be aware that Professor McNeil of the University of Nottingham and Dr Hammond of the University of Waterloo in Canada have a research paper shortly to be published on the effect of tobacco branding on young people. The research shows that the branding gives the misleading

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impression that one member of a brand family, typically in paler coloured packaging, is less harmful, less addictive and more attractive than others that come, typically, in darker coloured livery. It is illegal to mislead people about tobacco products in this way, which is of course why the terms “light” and “mild” are prohibited. The only solution to this problem is plain packaging.

The Earl of Listowel: I strongly support the amendment. I do so partly because of what my noble friend Lady Howarth said about the fascination of children with colourful packaging, of the kind that is displayed on Rothmans and Marlboro packaging and the like. I repeat my interest as a trustee of the Adolescent and Children’s Trust, a fostering agency.

I recently visited a children’s home. A 15 year-old young woman was saying over lunch that she was getting fatter and fatter. Young people who have had a poor experience of parenting can feel particularly worried about their weight and have low self-esteem. They are particularly vulnerable to marketing of all kinds, including package design of cigarettes. I am particularly concerned that, for this girl, for instance, a brand like Silk Cut Slims, with its elegant white packet, will suggest to her that if she smokes she will become more elegant and slimmer. Of course, there is a danger that, as a young woman, she may feel that smoking will reduce her appetite, making her less fat.

I remind Members of the Committee that, according to the Office of National Statistics, two-thirds of children in care smoke—far higher than the national average. The rates of teenage pregnancy for those in care are far higher. This is a risk for young women, such as the woman in care I met last night who started smoking at the age of eight, had a child while in her teenage years and continued smoking throughout her pregnancy; I think she was 17. These young children are encouraged to smoke by marketing, including the packaging of cigarettes. They do not have parents to guide them. They are therefore more susceptible to marketing messages. They become pregnant and their children are further at risk of being underweight at birth, suffering from disability and being premature. The children grow up with a mother who smokes in the house and the child is therefore at risk of respiratory illnesses and more likely to miss time at school and possibly to fall behind. He is also far more likely to pick up smoking if his parent smokes.

I urge Members of the Committee seriously to consider the amendment and consider curtailing marketing in this way. If we look back, we have to say that we have not looked out for our most vulnerable children as well as we should have done. If we look back at the fostering and social work services we have provided, we have not invested in social workers and foster carers. What the Government and Conservative Party are now considering in terms of social work is encouraging. This is a small but important step in improving the chances for these children and their children to do far better than they have in the past.

4 pm

Lord Campbell-Savours: I think this is a cracking amendment. I hope that those who tabled it will move it on the Floor of the House on Report so the House

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has the opportunity to vote on it. This should be in the legislation. I am convinced it would have the support of the majority of the British people. It is constructed in the normal language of legislation. I have put aside my rather lengthy brief on this matter because I understand that we are short of time. We are running against the clock and have a lot of business.

One reason why I support the amendment is because, if used in the way I would like it to be used, it would isolate imports. If we had a standardised, single-colour pack for all cigarettes with the name of the manufacturer in very small print on the side, it might make life a little easier for those who want to help others stop smoking. To be even more radical, if we are intending somehow to isolate imports—we have an opportunity to deal with that on the next amendment—perhaps we should have coloured cigarettes. My noble friend Lord Patel referred to Sobranie Black Russian, which I remember from when I was a boy. We used to smoke them behind the bike shed at school. A cigarette that is individually identified—it might be yellow—could be a cigarette distributed within the United Kingdom, so those who smoked non-yellow cigarettes would be indicating to others that they were smoking imports that had come through under the ludicrous European regime we have at the moment. The system that operates now is that I can ring up a tobacconist in Italy, order my fags and they are sent to me through the post. I understand that is now within the law. I have just checked with a relative who told me that that is the case and that you can buy cigarettes on the phone and have them posted to you in the United Kingdom. It seems to me that we have lost total control over cigarette consumption from abroad. Smuggled imports and, indeed, legitimate imports that do not turn up in our figures probably play havoc with the statistics on the domestic market in the United Kingdom. I hope that this amendment goes through when it comes to Report. I am sure that it will have a lot of support on the Floor of the House of Commons.

Baroness Golding: Far from thinking that this is a cracking amendment, I think it is crackers. Where have noble Lords been? I have brought some boxes.

Noble Lords: Order.

Lord Stoddart of Swindon: It is all right.

Baroness Golding: They are colourful, as the noble Lord opposite said. Where is the colour? It has been put on by the Government. Where are the nicotine content and the tar content? They are on the package. Where is the advertising? “Smoking kills”, “Smoking causes serious harm to you and others around you”. Are we going to get rid of all—

Baroness Tonge: I—

Baroness Golding: I am not going to give way for the moment. Do we want nothing on the packages? Then why have the Government already ordered manufacturers to do all this? They have done it. What is the identification? Sterling. It is the identification of

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the manufacturer. Do we not want manufacturers to be identified? Do we not want the size of the cigarette to be put on the package? What is it that we are after? Is it getting rid of this colourful advertisement, “Smoking causes a slow and painful death”, which was put on by the Government? Is all that to come off? What a lot of nonsense we do talk. We do one thing one day, and the next day noble Lords want it all off and to do something else. It is an absolutely stupid amendment.

Lord Borrie: I, too, oppose the amendment. It is a formidable amendment with a formidable array of sponsors, only some of whom we have heard from so far; others may speak shortly. One reason why I oppose the amendment is that while the Government, as we know from earlier debates, have been only too eager to impose various restrictions, especially the one on the display of tobacco products in retail premises, they themselves are not impressed by any evidence that the introduction of plain packaging would reduce further the number of young people smoking. Of course I have heard what the noble Earl, Lord Listowel, whom I respect, the noble Lord, Lord Walton of Detchant, and others have said; they have argued strongly that smoking among young people is wholly undesirable. But this is not a debate about how undesirable smoking is among young people; it is about whether it would assist in the objective of reducing the number of young people smoking if we had so-called plain packaging.

The principal reason I want to concentrate on in my opposition to Amendment 105 is the express provision within the amendment that the regulation should be introduced to ban the use of registered trademarks on packaging. Brand names, as the noble Lord, Lord Patel, indicated, are typically registered as trademarks. I trust that the Committee is aware that in order to get a trademark you have to pay application fees, registration fees and renewal fees, which are all paid to the state. The trademark is a right of property. Trademarks are of course a common feature of competition in all sorts of products quite apart from tobacco, but without trademarks the producers—of tobacco, in this case—would have to depend entirely on price competition rather than on differentiation by way of quality, innovation and reputation.

Interference with trademarks by one country within the European Union—in this case, the United Kingdom—or, for that matter, one country within GATT—again, the United Kingdom—seems to be contrary to the harmonised EU and international system of trademark protection. I ask those who are going to speak on this amendment, such as other sponsors or the noble Lord, Lord Patel, whether they have satisfied themselves that there is some overriding basis for allowing such infringement of trademarks as is involved in the amendment. I would be glad to hear the Government’s view. What is their attitude to the 1994 Trade-Related Aspects of Intellectual Property Rights Agreement entered into by this country? The agreement states that the nature of the goods—that is, how desirable or undesirable they are—is not an obstacle to trademark registration. Have they taken into account the view of Christopher Morecambe QC, an expert in intellectual property

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who has had articles published on this point, that the European Court of Human Rights is on record as ruling that the European Convention on Human Rights applies to intellectual property, which is protected against infringement?

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