Clause 4 - Advertising: exclusions
Tobacco Advertising and Promotion Bill [Lords]
2:45 pm
Mr Adrian Flook (Taunton, Conservative)
I beg to move amendment No. 8, in page 2, line 13, leave out
', or is contained in, a communication'.
I regard this as an exceptional Bill of unprecedented character, because it seeks to ban virtually every possible means of bringing a particular product to the notice of the public. Yet we must not forget that it is perfectly legal to manufacture, sell, buy, use and, more importantly from the Government's point of view, tax that product.
Elements of the Bill impose prohibitions that are wholly disproportionate to the assumed and unsubstantiated claimed benefits. It is anticompetitive and restrictive of trade, it infringes important fundamental freedoms and rights and it bears all the hallmarks of legislation that will give rise to serious challenge in the courts.
The ban on advertising that the Bill imposes is obviously supposed to be total, save the exclusions in the clause, which are minor and poorly and inadequately drafted. That is why we tabled the amendment.
The amendment would amend subsection (1)(a), which states that an advertisement is not an offence if it is a communication or is contained in a communication made in the course of a business that is part of the tobacco trade, and is for the purposes of that trade and directed solely at persons in that trade, who are subsequently defined. The supplementary provisions of subsection (2) apply.
The Government tell us that they have no intention of prohibiting advertising or promotion in the tobacco trade. After all, as I said, manufacturing and selling tobacco are perfectly legal activities. However, my contention is that the subsection does inhibit such advertising.
The subsection refers to advertisements that are communications or contained in communications. The word ''communication'' can be interpreted in two senses. In the Bill, we should consider terms as having their natural meaning, as I said in our previous sitting in relation to the natural meaning of the word ''promotion''. According to the ''Oxford English Dictionary'',
''a communication may be a letter or message containing information or news, or, the imparting or exchanging of information by speaking, writing, or by using some other medium.''
In paragraph (b), the word ''communication'' and the same phraseology are used a second time, but by inference of what follows, a communication is something sent to a person who requests information. In that context, I would welcome guidance from the Minister as to whether communication is used in the same sense as in
paragraph (a). That would not seem to be the case, given the Government's remarks in the other place in November. Lord Filkin stated that the exclusion would apply
''to trade journals and magazines, mail shots for tobacco companies to retailers and handouts at trade exhibitions.''
However, Lord Filkin went on to say—and this is the worrying point—that that was not an ''exclusive'' list
''and there may be other forms as well.''—[Official Report, House of Lords, 16 November 2001; Vol. 628, c. 853.]
The amendment seeks to discover what those other forms are. Apart from things that may be sent or handed to persons within the trade, which may comprise advertisements, there are display advertisements at trade shows, and advertising at other trade events and within wholesalers' premises such as cash and carrys. All constitute communications, but are different from communications that may be handed or sent to a person. The amendment seeks to ensure that advertising and the promotion of tobacco products is permitted, provided that it is conducted within and solely for the purposes of the tobacco trade.