Clause 10 - Brandsharing
Tobacco Advertising and Promotion Bill
6:15 pm
Mrs Caroline Spelman (Meriden, Conservative)
Thank you, Mr. Malins.
Under the Bill, tobacco companies that have diversified into other areas will be penalised for using their brand name on products completely unrelated to their tobacco products, even if the logo is completely different from that used on the tobacco products. It is beneficial to all employed in the tobacco industry if those companies diversify to protect jobs.
It is difficult to understand why the Government object so strongly to tobacco companies diversifying into other areas. I would far rather that the companies produced another product, such as petrol or something that posed a lesser risk to public health. To shut the companies down completely with no alternative outlet would be a hard measure to impose on them. We need to find ways of encouraging the firms to move into other areas if possible, and not to penalise them for doing so.
However, certain companies will be caught by the brand sharing measure and innocent parties will be bound by the constraints of clause 10. I provided a good example on Second Reading—the Minister is familiar with it, but I shall repeat it to the Committee to demonstrate the problems that might arise—of a company that markets clothing and luggage under the Camel brand. It is separate from any tobacco manufacturing company and produces goods that could not possibly be described as tobacco-based products or accessories, such as boots, shoes and suitcases.
Originally, the company adopted the Camel logo that is traditionally associated with that brand of cigarettes. It is an international company that is based in Germany and the United Kingdom. In order to comply with the relevant European directive, it completely changed its logo and renamed its products Camel Active. The style of writing of the Camel name was completely different from the logo on a packet of cigarettes and the company continued to sell entirely tobacco-free products. The company is worried that it might still be caught by the Bill, so it has asked me to bring its concern to the Committee's attention. It might be an innocent victim, subjected to the clause's brand sharing restrictions.
It is interesting to reflect on the advice that was given on brand sharing when the European directive was annulled. I have a copy of a letter from the company— Worldwide Brands—which has been in close contact with the Advocate General who was instrumental in the decision to annul the European directive. As we all know, it was decided that the measure had been introduced on the wrong legislative basis. On brand sharing, the Advocate General held that
``the Directive's provisions on brand diversification advertising in no way contribute to the removal of trade barriers affecting brand diversification products.''
He was not minded to restrict brand diversification on internal market grounds. He concluded that
``since the Directive would not be an effective means of reaching its stated Internal Market goals, it was not proportionate to these goals and thus infringed the proportionality principle, the EC Treaty provisions on the free movement of goods and the basic rights to property and to pursue an economic activity.''
Brand sharing was not to be treated as harshly under the proposed European directive as it is under the Bill. Furthermore, the Advocate General held that
``the restrictions on brand diversification advertising violated the right to freedom of speech, as guaranteed by Article 10 of the European Convention on Human Rights... the Community legislator had not presented any evidence to suggest a link between brand diversification advertising and overall tobacco consumption... there were therefore no reasonable grounds to justify the restrictions on freedom of speech provided for in the Directive.
That interesting information about the European directive is relevant to our debate on brand sharing. Clause 10 does not provide an adequate solution for companies such as Worldwide Brands, which through its best endeavours has tried to break free of the accusation that when people buy boots and shoes with the Camel Active logo, that somehow fuels tobacco consumption and increases smoking prevalence.