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My reason for tabling this amendment is very straightforward. Section 6 of the Tobacco Advertising and Promotion Act 2002 includes an explicit exemption for specialist tobacconists from the legislation banning advertising. It does so subject to three conditions. These are that the advertisement has to be inside or fixed to the outside of the premises; it cannot be for cigarettes or hand-rolling tobacco; and—the part that concerns me most—it has to comply with regulations governing advertising in specialist tobacconists.

As regards this last condition, the actual wording of the section is very clear. It states:

“(1) A person does not commit an offence under section 2 if the tobacco advertisement ... complied with any requirements specified by the appropriate Minister in regulations in relation to tobacco advertisements on the premises of specialist tobacconists”.

Clause 18 removes this explicit exemption by giving the Secretary of State the power to decide whether the exemption should remain. In other words, it removes the existing certainty for specialist tobacconists under the 2002 Act. Therefore, one very straightforward question needs to be asked. Why is this clause needed when Ministers already have a power under Section 6 of TAPA 2002 to specify requirements in relation to tobacco advertisements on the premises of specialist tobacconists?

We have had an assurance from the Minister that the Government have no intention of removing the exemption for specialist tobacconists altogether; rather, they say that they intend to use the regulation-making power in Clause 18 to—and I quote the Minister—

If that is the Government’s intention I have no problem with it. Incidentally, I hope the Minister can also confirm that there is no intention of preventing specialist tobacconists from displaying tobacco products inside their shops. I only ask why it is necessary to disapply Section 6 of TAPA, which already contains a regulation-making power, and replace it with another regulation-making power which would ostensibly enable the Government to achieve exactly the same thing. The Minister was kind enough to write to me on the matter but I would be grateful if she would briefly place her comments on the record. I beg to move.

Baroness Thornton: My Lords, Clause 18 replaces the existing exemption from the tobacco advertising ban for specialist tobacconists with regulation-making powers, as the noble Earl outlined. Currently, such shops are allowed to advertise their specialist products provided the adverts are either inside or fixed to the outside of their shop.

The new regulation-making power would allow us to limit tobacco advertising to the inside of specialist tobacconists only—adverts would no longer be visible outside their shops. This is an important element of our approach to tobacco control. Along with Clause 19, these new powers will help to eliminate unsolicited tobacco promotion, protecting children and supporting those people who want to quit. The noble Earl, Lord Howe, is right that the 2002 Act provides regulation-making powers with respect to advertisements in or

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outside specialist shops. However, there is explicit provision in the 2002 Act for specialist tobacconists to have adverts fixed to the outside of their premises. Regulations made under the existing powers could only specify requirements about outside adverts, not prohibit them altogether.

We want to prohibit all tobacco advertising that is visible to people who have not chosen to see it. We propose using the new regulation-making powers provided by Clause 18 to ensure that advertising of specialist tobacco products is not visible outside specialist shops. However, the noble Earl is right that there is no intention to limit advertising inside shops within the current regulatory framework. We do not want to unfairly penalise specialist tobacconists. We recognise they are involved in a legitimate trade and need to be able to attract customers. They would still be able to use their window displays to inform customers about what they sell by advertising tobacco accessories, such as pipes, or by listing the tobacco products they sell. They would still be able to advertise specialist products inside their shops.

In reviewing Hansard, I have realised that in Committee I said that the clause would still allow advertising on the outside of specialist shops. While the existing primary legislation expressly permits advertising on the outside of shops, the new provision would only allow such advertising if regulations provided for it. I apologise for that and hope that I have made the position clear in my letter to the noble Earl, which I am happy to share with the rest of the House and place in the Library.

By removing unsolicited tobacco promotion, Clause 18 supports the Government’s aim to provide an environment in which not smoking is the easy choice, and I commend this clause to the House.

Lord Naseby: My Lords, is the noble Baroness nit-picking? She must have had the representations that Members of the Committee have had from the Imported Tobacco Products Advisory Council. The quotation in section 2 of the letter shows that in 2006 the TNS Omnibus survey indicates that in the UK 83 per cent of cigar smokers and 96 per cent of pipe smokers are aged 35 and over. What is the point of being allowed to advertise inside the shop if we cannot get people in from the outside? These are specialist, tiny shops, small in number. If they cannot get people into the shop, what is the point of being able to advertise within the shop? This is not correct.

Baroness Thornton: My Lords, I take it that the noble Lord was intervening to ask a question before I sat down. I repeat that we do not wish to unfairly penalise specialist tobacconists. We recognise that they are involved in a legitimate trade. Regulations and the Bill are intended to allow them to continue to do that and to be able to attract customers.

Earl Howe: My Lords, I am grateful to my noble friend for asking for that clarification; it was helpful to receive the Minister’s last assurance. However, I am also grateful to her for the assurances that she was able to give in the main part of her remarks, and I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

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Clause 19 : Prohibition of tobacco displays etc

Amendment 42

Moved by Lord Borrie

42: Clause 19, page 23, line 15, at end insert—

“( ) No offence is committed under section 7A if—

(a) the products are displayed at a place where tobacco products are offered for sale,

(b) the display is that of one packet only of each tobacco product which is offered for sale, and

(c) the display complies with such requirements as may be specified in regulations.”

Lord Borrie: My Lords, I also speak to Amendment 43. The government proposal in Clause 19—the most fundamental, significant proposal on tobacco in the Bill—is to prohibit entirely any and all displays of tobacco products in retail premises. The stated objective of Clause 19 is to protect children from the promotion of tobacco products and to support those adults who are trying to quit smoking.

Everybody will know that in both supermarkets and smaller retail shops there are, usually behind the counter, gantries. Gantries are units displaying tobacco products in retail outlets. The effect of the Government’s proposal in Clause 19 is that all those gantries and displays would have to be covered up in some way. My view, expressed in Grand Committee, was that Clause 19 should be removed entirely from the Bill. That proposal is shortly to be discussed under Amendment 46, tabled by the noble Earl, Lord Howe.

The Government’s case for Clause 19 is seriously flawed. It is, to a large part, dependent upon dubious and highly speculative evidence from various Canadian provinces and Iceland. It ignores the fact that the display must nowadays in Britain be heavily weighed down with health warnings, “Smoking kills” being the most prominent indication behind the counter that any customer can readily see. It also ignores the huge success, as vouched for by the Chief Medical Officer, Sir Liam Donaldson, of the ban on smoking in enclosed public spaces, in terms of both compliance, which is incredibly high, and improvements in public health.

Noble Lords will see that my Amendment 42 is a kind of compromise, intended to permit some form of limited display in shops where tobacco products are often for sale. The display under my amendment would be limited to one packet only for each tobacco product offered for sale in those particular premises. I got to that point in thinking about how some compromise might be achieved by studying closely the words of my noble friend Lady Thornton:

“This is not about preventing any viewing ever of a cigarette pack by a child. But there is a big difference between seeing a single cigarette pack and being exposed to a large, brightly lit and colourful gantry in your local corner shop next to your sweets”.—[Official Report, 9/3/09; col. GC 391.]

The noble Baroness went on to admit that some adult customers—although not all the time and not all that often—need a chance to see a particular cigarette packet before buying it. The rest—most—usually just go to the one that they are used to and which is their normal purchase. I have carefully followed the words of the Minister in drafting Amendment 42. The draft

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assumes that the Government wish to impose some regulations on the size of the area covered by a display to avoid any possibility of the “brightly lit and colourful” display coming in via a back door when the Minister, quite properly, is concerned about that.

4 pm

Linked to Amendment 42, but on a somewhat different topic, is Amendment 43. Tobacco products are often displayed in places such as nightclubs and casinos where access to the premises is usually forbidden to anyone under the age of 18, and that is strictly controlled. No child could conceivably be influenced to take up smoking through tobacco products displayed in places where he or she has no access. Surely the Government will not justify the application of the ban to nightclubs by the need to protect adults who want to quit smoking. That would be a very tenuous argument for this application to nightclubs.

There may be people—perhaps even in this House—who have doubts about the effectiveness of the exclusion of those under 18 years old from nightclubs, but I emphasise the controls that the Licensing Act 2003 imposed, whereby the relevant premises licence or club premises certificate restricts access to individuals aged 18 or over. I also refer to the new system of licensing for door supervisors. Noble Lords may have referred to them in their time as bouncers but I believe that “door supervisors” is preferred by those concerned at present. Licensing was introduced for them in 2006 and I am indebted to my noble friend Lady Henig, who is chairman of the Security Industry Authority, for enabling me to appreciate the much improved image of door supervisors among the public and the police. There is greater trust now in their effectiveness because they have to undergo criminal record checks and training in health and safety, conflict resolution and awareness of drugs. With entry so comprehensively restricted for nightclubs and casinos to those over 18, surely there can be no question whatever of the display of tobacco products in such premises having any influence on children. I beg to move.

Lord Walton of Detchant: My Lords, I very well appreciate that the noble Lord, Lord Borrie, has tabled this amendment as an attempt at compromise. However, the problem is that if one takes what he proposes literally, it would create enormous difficulty because since 1998 tobacco manufacturers have increased their ranges threefold within brands or brand families, with a popular brand such as Benson & Hedges increasing its brand family from four in 1998 to 12 in 2008. The amendment would persuade tobacco manufacturers to increase even further the number of different brands and brand variants available to maximise their brand presence in store. It would also make enforcement very difficult, even impossible, as it would mean that trading standards officers would have to check that only one pack of each branded variant was displayed. If prominent and colourful displays were still allowed, that would do very little to reduce attractiveness to children. I am afraid that I cannot support the amendment.

Baroness O'Cathain: My Lords, I, too, cannot support the amendment. I want to home in on the point which the noble Lord, Lord Walton of Detchant, has just

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made. By extending brand families, one encourages more people to try each new part of those families. I have hands-on practical experience of that but through launching a product which is good for you as opposed to one that kills. When I was head of the Milk Marketing Board for England and Wales we decided to launch semi-skimmed milk. We launched semi-skimmed, skimmed and homogenised milks; I think about eight to 10 different types were launched. They gave consumer choice. Not one of them encouraged children to try something on which they could get hooked, and thereby create a health hazard for them for the rest of their lives. Let us not forget that 65 per cent of adults who smoke started smoking when they were children. It is children who are enticed into these CTN shops, as they are called—confectioners, tobacconists and newsagents. There are sweets there; they are just on the corner; they are a nice place for kids to meet friends after school. The children see these cigarettes and are tempted.

We all know what it is like to be tempted. I cannot even go into a cake shop because I know exactly what will happen. The reality is that these children think it is smart. The reason I do not go into a cake shop is that I do not think it is smart to eat too many cakes. Children are subjected to peer pressure. They think it is clever to go behind what we used to call the bike shed. They are impressionable. It is not the Marlboro Man any longer; it is something about being with their group and daring one another. Which one of us has not been subjected to, “Come on, don’t be so lily-livered, don’t be so stupid. Try it”? They try it. Perhaps they do not like the first few cigarettes, but then they get hooked. We all know that most adults do not want to smoke, but they are addicted. If you hook them at the age of 12, 13, 14, or 15, my goodness, you have got them pretty well hooked for life.

What damage are we doing to the health of the nation? The amendment is just a mid-way stop between the Government’s position and a free-for-all. I actually support the Government in this. I am sorry to say this, as I have the highest respect for him, but I think the noble Lord, Lord Borrie, is wrong.

Lord Judd: My Lords, I have a great respect and, indeed, affection for my noble friend Lord Borrie, but on this amendment he fails to carry me. I find myself strongly behind the Government. We all know that packaging has become one of the principal techniques by which marketing is undertaken. It has much more effect in many ways than any other kind of advertising. In particular, new techniques are now being introduced which I find rather disturbing, such as the concept of power walls, where a carefully prepared display of different packets from different manufacturers makes a very attractive montage for the young. It also seems to me that the tobacco industry is surprisingly candid about just how important this is for it, the comments of the spokesman for Japan Tobacco International about Camel cigarettes really making the point. He said:

“The limited edition Camel packs have a fresh design in keeping with the brand’s long-standing reputation for innovation. Popular with style conscious adult smokers, Camel offers a high profit return for retailers so should be well stocked at all times”.

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The Camel pack was also described as being popular with “adult student populations”, although I am not entirely sure how it is possible to target that particular adult section of the student community without affecting others.

The evidence is there. Our neighbours in Ireland, lately in Finland, and particularly in 11 of the 13 Canadian provinces have taken legislative action in this respect and seen a very significant fall in the number of young people smoking. I believe the Government are absolutely right on this and they have my full-hearted support.

Baroness Tonge: My Lords, I agree with everything that has been said about the effect this amendment will have on young people. If tobacco products and cigarette packets are on display, they will be encouraged to smoke. For me there is no doubt about that. I do, however, understand the spirit in which this amendment was tabled.

I would like to put on record that we have heard from retailers arguments about the cost of adapting their shops, the chances of crime being increased while they are reaching for cigarettes that have to be hidden away, or the increase in smuggling, and I do not really see how this amendment will help in any way. They still have to reach for the main bulk of their supplies of cigarettes, even if they have only one packet of each brand on display. I do not think that this will help retailers. It certainly will not help to discourage young people from smoking. Therefore, I urge the noble Lord to rethink.

Lord Naseby: My Lords, I support the noble Lord, Lord Borrie, who has great experience of the world of competition. He will be aware, as am I, that the incidence of smoking among 11 to 15 year-olds has reached an all-time low. That is to be greatly welcomed. I imagine that the health education programme will continue on that front. Two sets of figures have been published. One set shows that 6 per cent of 11 to 15 year-olds have smoked one cigarette a week. Another government-supported survey shows a figure of 2 per cent. The Government are to be congratulated on the success of reducing the incidence of smoking among young people.

It remains a legal product. No Government have yet been brave enough to ban it. If it is banned, that is fine; but if it is a legal product, is your Lordships’ House so arrogant as to suggest that there should be no product development and no line extension? What was the Milk Marketing Board doing? Line extensions. That is a perfectly normal situation for a consumer product company. If we are by the back door suggesting that we want to kill off the tobacco companies by preventing them developing any form of line extension, why do we not say so openly? If it is not that, those tobacco companies that produce different variations of their products are, I believe, justified in offering them to the consumer. That is what consumer choice is about.

Some people are so dedicated to anti-tobacco—I understand that stance—that they would rather that nothing was offered. I repeat that, so long as this

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product of tobacco, cigarettes and so on, is offered legally to the consumer, it is a very brave Parliament that says that there shall be no line development of any product in that field. I support the amendment proposed by the noble Lord, Lord Borrie.

Baroness Howarth of Breckland: My Lords, I support the Government’s position and not the amendment proposed by the noble Lord, Lord Borrie. I am intrigued by the arguments made by the noble Lord about the tobacco trade. Clearly, there are two issues here. One is the large manufacturers, and the other is the plight of small businesses. We have all had a large number of letters from small businesses, and they deserve our understanding and sympathy.

My own village shop is absolutely crucial to the life of my village, and the whole community circulates around it. However, I doubt very much indeed whether this Bill will make our shop close. It is there for a wide range of goods and services. No one has yet banned the National Lottery, which seems to be a great joy for a large number of people in my village. I do not think that small businesses are going to suffer. We have heard a great deal about the costs of these gantries, with inflated stories on one side, and understanding that there are people who want to deliver these on the other. If noble Lords have not seen illustrations of these, I would encourage them to do so.

4.15 pm

Why do I take this view about the benefits of the provision? Other noble Lords have not spoken a great deal about research into smoking among children. I have looked with interest at Professor Hastings’s research, as well as the work in Canada—it is my field—and I know that we do not have longitudinal research. However, we have strong indicative research into the effects on the perception of gantries among children. I am continually bemused by the attitude of the industry. If gantries do not have any effect, as companies keep on telling us, why are they so keen to keep them? Why are they keen to carry on developing lines, as the noble Lord illustrated? We have a double argument here: it is important, yet it has no effect. Even if we cannot prove the effect on children, we can prove the risk, because, as noble Lords have said, children start smoking early. Most people who smoke may be 32 or over, but they have usually started very early and it is our duty to help our children to stop smoking.

We may not know other things, but we know from research that cancer kills. We know of the link between smoking and cancer. We know that smokers start early. We strongly suspect the link between advertising and consumption—otherwise, why the universal ban on advertising after all the arguments we went through some years ago? If we care about the lives of our children, why are we not enforcing the precautionary principle? I spent years in the Food Standards Agency worrying about the precautionary principle in relation to BSE and vCJD. We are now invoking the precautionary principle in relation to swine flu: one case closed down a whole school. When we know as much as we do and still do not emphasise the precautionary principle on behalf of the lives of our children and their future, we are abdicating responsibility. Therefore I support the Government and oppose the amendment.

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Lord Stoddart of Swindon: My Lords, I congratulate the noble Lord, Lord Borrie, on producing these two amendments, which are worthy of great consideration. Indeed, I have considered them closely; but I have come to the conclusion that they do not go far enough. We shall come to further amendments that do go far enough.

Clause 19 is a restraint in trade. It prevents retailers and all purveyors of tobacco exhibiting their wares as any other trade can do. I believe that is an unacceptable imposition on thousands of small and medium-sized shopkeepers who sell tobacco. Therefore I am opposed to Clause 19 per se.

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