New Clause 10
Health Bill [Lords]
3:15 pm

Sandra Gidley (Romsey, Liberal Democrat)

I beg to move, That the clause be read a Second time.

The new clause has effectively been referred to as a plain packaging amendment; there were attempts at this in the other place. The clause provides the Secretary of State with powers to make regulations to restrict the use of branding, including the shape and colour of tobacco products and their packaging.

We have introduced this new clause because we have a slight problem with the Government proposals that were discussed on Tuesday afternoon, which sought to remove all tobacco products from display. We are talking about an adult product that should be sold only to adults. The evidence base for the effect on children is limited, which is a shame because the Bill has been touted as introducing measures to reduce smoking by children. There is a need to curtail further the impact of cigarettes; this new clause seeks to do that.

The pack would retain the brand name of the product, which would be displayed in a standard font, the volume of the product, for example 20 cigarettes, and features required by statute, including health warnings, tar and nicotine yields and the duty stamp. Committee members have been provided with examples of plain packs. Tobacco manufacturers have suggested that these would be easy to forge, but it seems to me, having seen forged packs, that existing packs are also easy to forge. The problem of smuggling needs to be resolved in a completely different way; there are ways that that can be achieved.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

European legislation allows the free movement of products from other European countries to this one. We all know about the border problems with smuggling and other issues. If we do this on our own without our European partners, European legislation would still allow those products to be in this country. How will that be? We would have products sold in this country that would be in plain packaging, while everything else that is floating around would be in other packaging. How is that going to balance out? Is it legal?

Sandra Gidley (Romsey, Liberal Democrat)

The tobacco manufacturers would say that it is not legal. There is another body of opinion that says it is. That is probably a lawyers’ charter—I do not know; it is up to the Minister to decide all that. Both the lawyers have gone, so perhaps we can make some progress.

The new clause states:

“Before making any regulations...the Secretary of State shall consult”

those affected. The regulations would be subject to affirmative resolution.

It is worth explaining why the measures are necessary. Currently, branded packaging constitutes a highly effective form of tobacco advertising. I had the dubious pleasure of serving on the Committee discussing the Tobacco Advertising and Promotion Act 2002, which was my first ever Bill. I was totally dismayed that it took us all day to define a tobacco product—that was baptism by boredom, I think, rather than by fire. Certainly, the intention of that Act was to try to prevent those visual triggers and icons, and the ways that products could be used and sold, from subtly reinforcing certain brand images.

As a result of the 2002 Act, all the emphasis has gone to tobacco display. Some of the display material produced by the large tobacco manufacturers is not in the spirit of that Act. The boundaries have been pushed so far that there are some large, flashy displays at point of sale. Although measures in the Bill seek to remove everything completely, there may be a compromise in restricting what is on display. It has been shown by numerous people that tobacco branding is particularly potent in the recruitment of young people into smoking habits. Design features, including colour coding, give them misleading and illegal impressions that one type of cigarette is less harmful than another. In fact, they are all fairly, or completely, harmful.

The new clause seeks to make plain packaging mandatory for all tobacco products, removing all branding and leaving the health warnings and the name of the product. Current branded packaging is a form of advertising and misleads smokers about the safety of the product.

Since the advertising ban, the pack has acquired even greater importance as an advertising tool. The tobacco industry uses it to recruit smokers to replace those who have quit or died. The industry saw early on that the pack would acquire even greater importance. In 1991, some time before the ban, the trade magazine “Tobacco International” wrote that

“the traditional cigarette pack will not be good enough for the selling job it will have to do. If it cannot be shown and marketed in advertising as before, it must carry the whole message itself.”

Many similar comments are available.

In a speech much quoted in the Lords, the global brand director of Imperial Tobacco boasted that it had used pack design to undermine the advertisement ban and increase sales. I quote:

“The effect was very positive. Already the number 1 brand, our share grew by over 0.4 per cent. during this period—that may not sound a lot but it was worth over £60 million in additional turnover and a significant profit improvement. Often in marketing, it is difficult to isolate the effects of individual parts of the mix. But in this case, because the UK had become a dark market, the pack design was the only part of the mix that was changed, and therefore we knew the cause and effect.”

Branding is especially effective when it comes to young people. The great majority of smokers start smoking before they are 18 and the longer they smoke, the harder they find it to quit. Research conducted by the university of Nottingham has shown that young people found branded packs much more attractive than plain packs, demonstrating the appeal of packaging and branding independent of the appeal of the tobacco product itself. There is much anecdotal evidence that if young women in particular see a glitzy pack they want one. It is almost like an accessory. Professor Gerard Hastings from the Institute for Social Marketing describes cigarettes as,

“‘badge products’ which are conspicuously consumed, particularly by the young, to make public statements about the user’s self-image and identity”.

With that goes the design of the pack.

Branding can also be used to mislead smokers about the relative safety of brands. The use of colours or livery can mislead smokers into thinking that their favoured brand or brand variant is a safer product than others. Some have shades of a colour so that the strongest cigarettes are darker. People smoking cigarettes from a lighter coloured pack will think they are less dangerous when in fact they are just as dangerous in the long run.

Amendments were tabled and debated at Committee and on Report in another place. They have been reintroduced here because there is new evidence, including research that stresses concerns raised in another place, which shows that the tobacco industry has advanced legal arguments knowing them to be unsound, including arguments promoted to Members of this House. The Bill has also been amended in response to Lord Stoddart’s objection at Committee stage that it should provide for an affirmative instrument. Greater clarity has been provided by the Minister on the forthcoming tobacco control strategy, which could include a planned review of the evidence.

Committee stage in another place coincided with the world conference on tobacco and health. On the very day that Members debated plain packs, new research was being presented at that conference. The new research was on previously secret internal tobacco industry documents that showed that not only are industry claims about international law incorrect, but tobacco industry advocates knew that to be so at the time they made the claims. The study confirms that.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

The hon. Lady is taking us through a lot of background material, much of which is understood by colleagues on the Committee—indeed, much of it is shared. Would it be helpful if my hon. Friend the Minister were to set out the Government’s position on this, because it would enable her to focus on the key issue that she wants to remedy rather than having a general canter through all the issues?

Sandra Gidley (Romsey, Liberal Democrat)

I do not think I was cantering. I appreciate we have limited time left, but this is important. While the Committee may feel it is fully conversant with all the detail because we have all been bombarded with information, nevertheless there are those outside who have not necessarily seen everything. I can assure the Minister that I could be speaking at greater length. [Interruption.] The hon. Member for Eddisbury casts aspersions by suggesting that people will not read reports  of our deliberations. Some people do. He has quoted at length what was said in another place and used that for much of his material, so it must have some use.

It might be worth moving on to a summary of the arguments against plain packaging that were made in another place. Some raised concerns that health warnings would be removed. The amendment does not do that. It is clear that the legal warnings that currently stand will continue. There were concerns that information on nicotine and tar levels, required by law, might not be on the packs, yet the amendment does not alter that requirement. There were also concerns that the colour on the packs is required by Government, but I am not sure why that was such a concern. I have a concern about the white packs that have been sent round, because white often looks like a healthy colour. Brown might be a better colour—to match the colour of one’s lungs after smoking such products—but it is worth mentioning that the plain pack will enhance the prominence of the health warnings.

It has been said that plain packaging would not reduce youth smoking. It is fair to say that it is not possible to prove that a change to plain packaging would reduce youth smoking—it would need to be trialled—but it can be demonstrated that branded packaging increases the appeal to young people, and that is what the industry does all the time with its constant renewal, the designer packs and the collector’s item packs, which are all designed to get people buying more packs of cigarettes. I do not think they care whether the cigarettes are smoked as long as the money is handed over.

Another concern is that plain packs constitute an infringement of trademark. According to Sir Richard Buxton:

“The grant of trademark confers the right to stop others using that mark. It does not confer on the trademark owner a right to use that mark in all circumstances and irrespective of public policy considerations.”

Some complain that plain packs are an infringement of the trade-related aspects of intellectual property rights agreement. The industry was advised by BAT's head of corporate affairs, David Bacon:

“Current conventions and treaties offer little protection”.

Others raised concerns that there would be an

“unlawful interference with the human right, established by the European Court of Human Rights, to free speech between the manufacturer and the consumer of a product.”

EU directives already provide for restricting misleading branding and the insertion of health warnings on tobacco packaging. In his formal opinion, the former appeal judge, Sir Richard Buxton, asserted:

“In my view any court would take very seriously the views of health authorities that see plain packaging as an effective and necessary means to a public health end”

and

“I would not expect an English court, or for that matter the Strasbourg Court, to get into arguments with the British Government about the lawfulness of its adoption of advice recommended by the WHO and given to it by its Chief Medical Officer.”

Andrew Turner (Isle of Wight, Conservative)

Will the hon. Lady explain why she would not get involved in such a dispute? Would there not be such a dispute?

Sandra Gidley (Romsey, Liberal Democrat)

There may be a dispute. I am referring to people with far more legal expertise than I. Perhaps the hon. Gentleman would like to write to Sir Richard Buxton about it.

Andrew Turner (Isle of Wight, Conservative)

The hon. Lady is reading from a script. I assume she has something to say that I did not know, but she seems not to know what made me intervene.

Sandra Gidley (Romsey, Liberal Democrat)

I am not quite sure what point the hon. Gentleman is making. Perhaps he would like to clarify, because I am not sure what he expects me to address.

Andrew Turner (Isle of Wight, Conservative)

The hon. Lady will say that there were reasons, but she will not explain them, and I wonder what the reasons are.

Sandra Gidley (Romsey, Liberal Democrat)

We are not getting anywhere with such interventions. I am totally confused by what the hon. Gentleman is trying to extract from me. I think he is trying to make mischief. I am not sure that he is aware of what point he wants to make, so I shall move on, if that is okay with the Committee. I have almost finished.

This is a measure that the tobacco industry fears more than anything, because if we introduce something similar in this country and it is a success, it will be emulated around the world. Even if products are put under the counter, the plain packaging amendment means that there is no pack appeal. All the efforts of the tobacco manufacturers have been in trying to promote smoking—and the packages themselves—as a sexy product. The aim of that pack design has one purpose: to increase sales. That has the knock-on effect of increasing smoking.

People who are trying to give up often say that seeing a pack of their favourite brand can act as a real trigger to that yearning. That may be lessened by a plain packaging amendment where those triggers would not be so strong.

Gillian Merron (Minister of State (Public Health), Department of Health; Lincoln, Labour)

I am sympathetic to the points that the hon. Lady made. The Government certainly do believe that more needs to be done to develop our understanding of how the packaging of tobacco products influences smoking by both adults who seek to quit and young people, and we will keep tobacco packaging under close review.

In my brief remarks, I should like to focus on the issue of evidence. There is some evidence that branding on cigarette packs may increase brand awareness among young people but it is not conclusive. It is also difficult to separate the impact of large, brightly lit tobacco displays from that of brand packaging. Both can convey, incorrectly, that smoking is normal, popular and attractive. While there is also evidence to suggest that branding on packs may mislead customers about the relative safety of different tobacco products, that too is very limited. No studies have been undertaken to show that plain packaging of tobacco would cut smoking uptake among young people or enable those who want to quit to do so. Given the impact that plain packaging would have on intellectual property rights, we would undoubtedly need strong and convincing evidence of the benefits to health, as well as its workability, before this could be promoted and accepted at an international level—especially as no country in the world has introduced plain packaging.

While we consider it premature at this stage to take these powers, we are committed to developing the evidence that is necessary to see whether this policy could change behaviour and protect young people from the tobacco industry’s marketing and zeal. The Government policy will develop further and the necessary changes will be made if and when appropriate. I hope that, in light of the commitment I have given on the Government’s behalf—to develop the evidence on plain packaging and keep the issue of tobacco packaging under review—the hon. Lady will feel able not to press new clause 10.

Sandra Gidley (Romsey, Liberal Democrat)

That was quite a brief reply. There was not much to get my teeth into. It occurs to me that somebody has to be the first and if we all sit around waiting for somebody else to do it, we will never get anywhere.

The Minister made an interesting point when she said that it is difficult to separate the impact of large, brightly lit displays from the impact of pack design. By implication, the Minister seemed to be admitting that the displays are part of the problem. Obviously, it would be useful if there were an all-party consensus with regard to measures the Government will take. On the Opposition Benches, we have raised concerns about a complete under-the-counter supply of tobacco products. Is there not a case for a compromise that further restricts the way that products can be displayed and addresses some of those concerns, but also addresses the concerns of businesses, such as small newsagents, who fear a rapid overnight change? They do not fear the changes in the longer term; they are quite happy to see the sales die out then, but will find it hard to cope with the sudden change.

Gillian Merron (Minister of State (Public Health), Department of Health; Lincoln, Labour)

The hon. Lady has raised the point, so perhaps I might give an assurance that it will be a number of years before smaller shops have to comply. Bigger shops will have to comply first, and we are working very closely with the representative organisations to set minds at rest. I also wrote recently to all Members of Parliament with all this information, and am happy to provide further information.

Sandra Gidley (Romsey, Liberal Democrat)

I thank the Minister, but in the short term is there there not a case for putting an end to some of the flashy displays that act as a promotion device in themselves? I shall withdraw the proposed new clause now and reflect on what might be a different approach on Report, but there is an interest in the House in discussing as many ways as possible of tackling this problem. We may disagree on some of the fine detail, but most people are committed to reducing smoking and, ultimately, to saving lives. I beg to ask leave to withdraw the clause.