Clause 1 - Meaning of ''tobacco advertisement'' and ''tobacco product''
Tobacco Advertising and Promotion Bill [Lords]
5:15 pm
Mr David Wilshire (Spelthorne, Conservative)
Before I make my first contribution to the debate, I draw the Committee's attention to the Register of Members' Interests, in which members will find no entry against my name in respect of tobacco. It is important to make it clear that if I go out of the Room from time to time, it is not to have a quick puff in the Corridor. On the other hand, I also draw the Committee's attention to the fact that I allowed the pro-tobacco lobby to buy me lunch, and I mention that in case the anti-tobacco lobby would like to take me out to lunch. I make that point because if I can be bought for a lunch I am not worth buying. Nevertheless, it is important that the Committee knows my interests, or lack of them.
My hon. Friend the Member for Basingstoke (Mr. Hunter) said that your presence would raise the quality of the debate, Mr. Amess. After you have heard one or two of my contributions you will know that achieving that will not be difficult.
My hon. Friend the Member for East Worthing and Shoreham said that this is an issue with which certain people are familiar. Well, I am not familiar with it. I was not present when it was discussed in the House of Lords and I was not present in any Committee sitting in the last Parliament in which it was discussed. I therefore make no apology for letting the Committee know that when there are votes I intend to cast my vote on the arguments that I hear in Committee, and not on the basis of what somebody might have said a long time ago, which is an approach that demeans democracy. If Liberal Democrat Members are prepared to say that it is does not really matter whether we discuss the issue now because it has been discussed before, that is their problem. They may not want to consider the Bill properly, but I do.
The amendment goes to the heart of what is an advertisement. If we are going to pass legislation that says that advertisements are not permissible, we owe it to our constituents to make it absolutely clear what we mean by an advertisement. It is not true to suggest that an all-embracing definition will be adequate to close loopholes and it flies in the face of common sense not to quantify the generalised statement in the Bill. When we scrutinise the Bill, we have to apply common sense rather then letting the lawyers run amok on our behalf. Sooner or later, the issue is going to end up in the courts. In scrutinising the Bill, it will be important to make sure that it is as clear as possible and that we anticipate legal challenges that may be mounted, which will stop us putting endless amounts of money into lawyers' pockets. To allow the Committee to know where I am coming from, my son is a barrister and I am speaking against the family interest when I say that we should make sure that we do not give lawyers work when we can avoid doing so. It is important that we go down this route with carefully scrutiny of what we mean when we refer to an ''advert.''
I accept the first part of the clause, which states that an advert is when the purpose is to advertise tobacco. That is fine. Whatever the ''Oxford English Dictionary'', clever lawyers or Committee members may say, I have no difficulty with somebody doing something with an intent to sell or promote if I can see that it is an advert; I am content that the advert should be there and it will be for lawyers to prove purpose and intent. There will be a defence in law for a person to claim that he or she did not intend to do it and that it is not their fault. That might be a loophole, but I am not a lawyer.
What is wrong is that the clause refers to something that happens or that is produced that has the ''effect'' of promoting tobacco. That wording is not adequate and it will be challenged time and again. Let us take what may seem like a trivial example. My understanding of cigarettes is that the brand name is often printed on the paper. It would be perfectly possible to argue that the reason why one buys cigarette A over cigarette B is because of the smell and that putting a name on it may be trying to promote it.
I should like to hear what the Minister has to say about packaging, and not only that of the cigarette, although the cigarette paper is in a sense packaging rather than a tobacco product. The amendment refers to ''no tobacco product itself''. We could have a long argument over whether just the tobacco, or the tobacco plus the immediate wrapper, constituted the tobacco product. If we are not careful, lawyers will get stuck into that question in court.
The box into which the product goes is clearly going to cause problems. I get the impression that in supermarkets in particular cigarettes are put so far out of the way of shoplifters that one must ask for them—I would not know because I do not buy the things. Supermarkets could have shelves full of white boxes with nothing on them. When one travels with airlines and visits duty free shops, there is an opportunity to take from the shelf, put in the basket and take to the till. It would be crazy for those shops to have rows and rows of 200 packs in white boxes because of legislation. How will a person know what they are taking off the shelf?
The amendment is necessary common sense for people who, without any persuasion from the advertising industry, decide that they want to buy cigarettes, cigars, tobacco or whatever. There must be some means of identification, particularly for self-service. For such packaging to be caught as an advertisement by the legislation is wrong. The Government should not leave the issue to a nudge and a wink, or say that they will not bother with it because it can be left to common sense. We must set it down to achieve some sort of clarity.
The amendment refers to
''invoices, letterheads, price lists and other stationery ordinarily used in the course of a business to identify that business''.
The argument behind the clause is that one cannot exempt even invoices. Were I a tobacco wholesaler sending out invoices, it would do little good to send you a piece of paper, Mr. Amess, that stated that you owed me £5,000 for cigarettes if I could not state the
company's name on it. How would you know to whom to send the cheque? Again, common sense must apply to such matters. The amendment mentions
''inscriptions, marks or signs exhibited on premises''.
Are we assuming that all smokers are psychic and that I could wander down the high street and just say, ''Ah, I can buy cigarettes in there''? According to the Government, anything put on the outside of a shop could be deemed to be an advertisement under the clause. For all those reasons, the amendment would not undermine what the Government seek to achieve.
We debated on Second Reading the whole range of civil rights and human rights issues and people's ability to smoke and know what they are doing. You would rule me out of order, Mr. Amess, should I attempt to raise those again. However, even if we accept that the Government have a majority and will get their way with the Bill, whatever we might think of it, I still hope that the Minister will indicate a determination to apply common sense to such issues as the amendment raises, even in a Bill that I think is flawed in principle.