Clause 1 - Meaning of ''tobacco advertisement'' and ''tobacco product''
Tobacco Advertising and Promotion Bill [Lords]
5:15 pm
Mr Andrew Hunter (Basingstoke, Conservative)
I shall be brief as most of the salient points have been covered. I should like to emphasise that this is a very serious amendment. It gets to the heart of the Bill. There is an onus on the Government to offer an explanation that was denied in the other place and that was also denied during the passage of the previous Government Bill. Two previous Labour Governments and the previous Conservative Government, dealing with legislation on advertising, felt a responsibility—a sense that they were beholden—to offer a definition of advertising. Those respective Governments, starting with Harold Wilson's in 1968, going through to 1974 and on to the 1980s and early 1990s, did that because they accepted the principle that, the closer the definition, the fewer
the loopholes. This Bill, endorsed by the Government, has actually turned that principle on its head, arguing that to define would be to create loopholes.
I approach this debate with an open mind, but I am dumbfounded, in the absence of an argument from the Government, at the idea that a lack of definition can ever result in fewer loopholes. It seems to defy logic to argue that.
If we look at the 1974 Act, mentioned by my hon. Friend the Member for East Worthing and Shoreham, the Gaming Act 1968, the Medicines Act 1968, the Insurance Companies Act 1982, the Financial Services Act 1986 and the Food Safety Act 1990, we find that successive Governments considered that a definition of advertising would reduce the likelihood of loopholes, not create them. I hope that the Minister can demonstrate to the Committee why the experience of the best part of a little more than 30 years should now be overturned and why we should accept that a lack of definition is in the interests of the enforcement of the Bill.
I understand the concept of direct tobacco advertisements and the Committee will not have problems with posters, billboards, press advertising and so on. That is the direct promotion of a particular brand. In the other place, some consideration was given to what could be called indirect advertising—an advertisement that has the purpose or effect of promoting a tobacco product, when it is ostensibly for another product. On behalf of the Government in another place, Lord Filkin chose as an example
an advertisement for something else—perhaps a fast car in which the driver is seen smoking an identifiable brand of cigarette as he puts his foot on the accelerator.—[Official Report, House of Lords, 16 November 2001; Vol. 628, c. 801.]
How on earth will the prosecution in a court of law be able to prove beyond reasonable doubt that such an advertisement had the effect of promoting the tobacco product rather than the car? I ask that because I genuinely do not know how that can be determined fairly or reasonably in a court. The clause is creating a paradise for lawyers because the issue of whether an advertisement is indirectly promoting a tobacco product will fill the coffers of many law companies. Is it really sensible to include in the Bill an open, undefined use of the term ''advertisement''? What is meant by an advertisement should be more tightly defined in the Bill.