Amendment 148

Health and Care Bill - Report (3rd Day) (Continued) – in the House of Lords at 9:15 pm on 7th March 2022.

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Lord Moylan:

Moved by Lord Moylan

148: Schedule 18, page 254, line 34, after “State” insert “which may not include products containing more than 20% of their calorific value by way of protein and not more than 5 grams of sugar per 100 grams in their composition”Member’s explanatory statementThis amendment, along with others to Schedule 18, ensures that foods that can be advertised as “low sugar” and “high protein” under Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods are exempt from the restrictions on advertising proposed in that Schedule.

Photo of Lord Moylan Lord Moylan Conservative

My Lords, in moving Amendment 148, I will also speak to Amendments 150 and 152 in my name. There are a number of interesting amendments in this group but I intend to stick to my last, broadly, and speak only to the ones in my name.

I had a number of amendments to this schedule—it has been renumbered; it was Schedule 17 but is now Schedule 18—in Committee, but I have decided to stick with just these three. I apologise that there are three; there is only really one, of course, but the schedule is drafted in such a way that everything has to be said three times. This amendment effectively relates to high-protein, low-sugar bars. Noble Lords may wonder why I have developed an interest in such bars; to answer that, I will tell them a story. That is all I am going to do. I will tell noble Lords a story about a real business; I will then ask my noble friend the Minister a question.

In 2015, in response to a government campaign for confectioners to develop new alternatives to overly sweet snacks, a husband and wife living near Solihull set up a company and produced a product called Grenade. In fact, its proper name is the Grenade Carb Killa. It is a high-protein, low-sugar bar. Frankly, it is not something I would particularly want to eat. It may be something that other noble Lords find equally not high on their agenda. It certainly is not marketed at children; it is largely marketed at and taken up by young people who enjoy going to the gym, exercising and doing all the things my noble friend Lord Bethell frequently illustrates himself doing on Twitter, such as plunging into cold pools in the middle of winter. What they want—perhaps my noble friend is an example of this—is an alternative on-the-go snack that is full of protein and will not give them too much sugar. That is what this product was aimed at; it was not aimed at children in any sense at all.

What is it that allows the manufacturers of this product to call it a high-protein, low-sugar bar? The answer is Regulation (EC) 1924/2006 of the European Parliament and the Council, which defines what you may call particular types of food. It says that, to be able to call something low-sugar, the product must contain

“no more than 5g of sugar per 100 g for solids”.

Similarly, it says that, to call something high-protein,

“20% of the energy value of the food” must be “provided by protein”. Of course, the Grenade Carb Killa was carefully crafted to match these regulations so that it could be called a high-protein, low-sugar food. The product is a success. It is heavily promoted online and on social media. Not counting manufacturing staff, there are 82 staff there. The net sales are now around £35 million a year.

So what does this Bill do to its producers? I take them only as an example that I am aware of, as they have approached me and explained their business to me. First, the Bill says that the criteria set out in the EU directive will effectively cease to apply, so the parameters by which they have created their product will no longer have any effect. This was confirmed to me in what has turned out to be quite a full correspondence with my noble friend Lady Penn; let me say how I grateful I am for the effort she has put into it.

Secondly, the Bill says that the Government will now consult on whether products will be allocated to one of 15 groups set out in the draft guidance. It is by no means clear to the Grenade company which group their product might be allocated to, as the groups are very broad. One of them is “sweet biscuits”, for example, so not all food will be allocated to a group; a chicken breast will not be allocated to one of these groups because that is not what is in scope, but biscuits and things like that might be. This allocation is phase 1 of a process, as I understand it. Assuming that a product is allocated to one of those groups, it is then rated against the nutrient profiling model.

Now, noble Lords may think that we might just see some light at this point since the very high level of protein in the product should get it racing through the nutrient profiling model—but no, because the Bill requires that there should be a protein cap in the nutrient profile modelling applied to the 15 groups. This is because the Government are terrified that companies might put protein in the cornflakes and get around the regulations that way, so the large amount of protein does not help it very much at all because of the protein cap.

My noble friend may say that all this is mildly fantastical because—have I not noticed?—there is an exception for companies with fewer than 250 employees, and, as I said earlier, this company has 82 employees. The problem, however, is that two years ago, so successful were they that they were taken over by a larger company. It is now completely unclear to them—and it is not clear from the Government—whether the 250 cap applies to them as a stand-alone subsidiary or is to be applied to the larger group of which they are now part; nobody knows.

It also has some rather bizarre consequences. It means that the food that will be risky and dangerous would not have been risky had it continued to be produced by a small company—it would have been perfectly okay as long as they kept their employment down. I thought we wanted employment to go up. The second thing of course, is that no small company manufacturing compliant food will ever dare to be taken over by a larger company in the future, so this has a real consequence for business practice.

The only hope the company has is to reformulate its products, which is expensive and, as we all know, takes a long time and can go awry. Noble Lords may remember the Cherry Coke episode, which was a disaster for the Coca-Cola company when it reformulated the product. Against what criteria will Grenade reformulate its product anyway? Nobody knows; and this sort of thing is being replicated up and down the country.

In the meantime, zealous Lords have other amendments in this group saying that what the Government really need to do—so clear is their understanding of business requirements—is move ahead more rapidly with this and have a hard deadline against which it must all be brought into effect, irrespective of the consequences for jobs, businesses and prosperity, and all to save three calories a day. So, that is my story. I am sure that the Grenade company is watching this now on parliamentlive.tv. I ask my noble friend: when I speak to the company tomorrow, what comfort can I offer? I beg to move.

Photo of Lord Naseby Lord Naseby Conservative 9:30 pm, 7th March 2022

My Lords, I support my noble friend on these amendments. Of course, this is an extension of the debate that we had on the eighth day in Committee on the Bill. I want to look at the central problem behind the case history that my noble friend has outlined so clearly this evening. We need to remind ourselves that we are dealing with the food industry, one of the largest industries in the United Kingdom.

To the best of my knowledge having contacted all the trade associations, all parties want to reduce childhood obesity. There is no argument about that anywhere and, in the case of this industry, there are several areas of trade association activity, through ISBA, the IPA, the Food and Drink Federation and—of particular relevance to digital advertising—the IAB, which has worked very closely with DCMS. In a sense, that is part of the problem, because my noble friend on the Front Bench is not speaking on behalf of DCMS but about the Health and Care Bill on behalf of the DHSC.

The IAB, representing all food manufacturers dealing with digital advertising, has worked very closely with DCMS. It has kept it up to date on the latest developments, but DCMS has not engaged or worked with the industry in finding a solution. The industry has worked constructively for a long time to propose a tech-based solution that would achieve the Government’s objective of a further reduction in the number of HFSS advertisements that are viewed by children. This proposed solution would use proven, targeted technology and includes an element of advertising campaign evaluation which would be future-proof—this is important—and ensure that it continues to improve. The irony is that the industry wants to work with the Government on this matter, but so far the Government are sadly ignoring this industry’s expertise and dismissing its proposals.

I had the privilege of working in the advertising industry for 25 years, and I have seen these sorts of developments in other fields. When you have an industry working with government on an area that is important to both parties, it is a tragedy that Her Majesty’s Government, through DCMS, are not working. Yes, it is new technology, and the Government might feel happier if there was some experimental work in special test markets or whatever, but the sad thing is that this technology is there, and is proven, but still Her Majesty’s Government are refusing to use it and are seemingly—perhaps I am being too critical from the outside—unable to understand whether it will work. This is hugely frustrating for any company in this market.

I am sure my noble friend on the Front Bench is aware that the Prime Minister wants this country to lead digitally, and here we are on the frontiers of this area where we are leading, yet we cannot move forward. If the Government have reservations—and it is difficult for someone from another department, in this case the Department of Health and Social Care, who has therefore not been party to what has been going on—would it not be more sensible to have another look and evaluate it properly with those who really understand how it works and how it is developing? If the Government are still not convinced, I suppose we will have to try again later. As someone who comes from that industry—I have no involvement now and am not speaking for any particular party—I want to see companies in this area, like the one my noble friend described this evening, to be able to succeed in future.

Finally and frankly, the Government’s blunt and disproportionate advertising ban will not be effective. When there is another system on the table, my noble friend ought to take it back, have another look at it and see whether it will help everybody.

Photo of Lord Black of Brentwood Lord Black of Brentwood Conservative

My Lords, I am speaking to Amendment 151A in my name and to four other consequential amendments which relate to the responsibility of online platforms for enforcing the ban on HFSS advertising. The amendments have been signed by the noble Baroness, Lady Merron, the noble Lord, Lord Clement-Jones and the noble Viscount, Lord Colville of Culross, a cross-party group which underlines how important the issue is, and I am grateful to them.

I declare an interest as a director of the Advertising Standards Board of Finance and deputy chairman of the Telegraph Media Group, and note my other media interests as set out in the register. I am also a vice-chairman of the APPG on ITV.

I intend to be very brief as these issues were discussed at great length in Committee. Indeed, over a marathon three-hour session, when many noble Lords raised concerns about the implementation of the proposed ban, they noted that it would not be effective as structured: it was not proportionate, it was an infringement on freedom of expression, and it was unfair and unbalanced because it penalised broadcasters and publishers and did not provide for any enforcement by the platforms—Google, Facebook, and others—where the vast majority of HFSS advertising sits.

To be clear once again, like all other noble Lords, I recognise the scale of the obesity challenge. I recognise too the strong political impetus behind the ban on HFSS advertising. Therefore, I am not seeking to swim against the tide and try to unpick this policy—rather, to ensure that the ban is implemented effectively and equally. That is what these amendments seek to do.

In essence, the Bill as drafted simply will not work, because it places all the responsibility for compliance with the online HFSS ban on advertisers. It places no responsibility on online platforms which control when and where advertising is placed, and which profit directly from it. That cannot be right or just. These amendments simply ensure that the online platforms are also held responsible for compliance, just as the Bill requires of the broadcasters. It does this by supplementing the Bill’s requirement not to “pay for” online advertising—which restricts the actions of advertisers—with the requirement not to “market, sell or arrange” online advertising, which levels the playing field between media owners and platforms. This is modelled on Ofcom’s existing regulatory regime for online advertising for some UK video-sharing platforms. It is not inventing a new concept, but simply building on what has been proven to work. It will be easy to implement through the Advertising Standards Authority which already regulates advertising online, and which has been designated as Ofcom’s statutory co-regulator in relation to online advertising controlled by the video-sharing platforms. This means that responsibility for compliance sits with those who control when, where and to whom advertising is served. It is vital that this is a statutory requirement.

I will make two other simple and brief points. First, these amendments are absolutely not about watering down the policy relating to HFSS advertising restrictions. They ensure only that they will be effective by making those responsible for controlling advertising, and who profit substantially from it, are held responsible. There is no reason at all why it should delay the implementation of the new regime.

Secondly, these amendments ensure that this Bill aligns with government policy in other crucial areas, and does not—ironically, as it stands at the moment—run counter to it. According to the Secretary of State, the online safety Bill seeks to ensure that the platforms are held accountable for scam advertising and other illegal content. If that legislation makes the platforms accountable, what could possibly be the objection to this flagship Bill doing the same for HFSS advertising? It is not just a question of joined-up government, but of ensuring the quality of public policy.

I know that my noble friend will say that all this can be addressed in the long-awaited online advertising review. That has already taken two years just to get to a second consultation, and that excuse is not good enough. We are not talking about just long grass—it is deep in the jungle. I doubt that it will see the light of day in this Parliament, joining other much-needed legislation levelling the playing field between platforms and content providers. If this legislation goes through without appropriate amendments, it will be years before another legislative vehicle comes along to right these wrongs. In the meantime, the HFSS ban will have completely failed under the weight of its own contradictions. Is that really what the Government want?

These amendments are actually about making the Government’s own policy work, which it will not, as it stands. They are about fairness, the sustainability of the media and ensuring that platforms are responsible. I hope they will find support across the House from those who support the ban and those who do not— that point is actually now behind us—because they are designed to strengthen this important Bill and make the implementation of the policy more effective. I hope, therefore, that my noble friend will say that the Government will accept them, so that it is not necessary to divide the House.

Photo of Lord Bethell Lord Bethell Conservative 9:45 pm, 7th March 2022

My Lords, I shall speak to Amendments 149, 151 and 153 in my name and those of the noble Lord, Lord Krebs, and the noble Baronesses, Lady Walmsley and Lady Boycott. The amendments refer specifically to a deadline for the implementation of the junk food advertising restrictions.

I completely applaud the Minister for the approach of bringing in government amendments to try to refine the terms of the Bill; it is a collaborative approach, which I think all of us have really appreciated. However, in this matter, a government amendment has, I think, overshot, by removing the previous deadline in the first draft of the Bill. These amendments seek to rectify that.

I will not speak at length, but many have said, both in Committee and at Second Reading, how urgent it is to address the issue of obesity in this country. We cannot have any delay or rolling procrastination around these measures, so it is entirely right, proper and suitable for there to be a deadline in place in a Bill such as this.

It is also right to have certainty. I have huge consideration for Grenade and its low-sugar, high-protein bar. I will certainly look out for its excellent product when I am next in the gym, and I think the uncertainty it faces, which my noble friend Lord Moylan has described, is heartbreaking. That is why it is important to start the mechanisms now for answering its quite reasonable questions and to put a deadline on when those answers should be delivered.

I am not blind to the fact that many in the industry have voiced concerns that the deadline is too tight. I have looked at it and I do not accept those concerns. I think the bans have been around and on the books for a very long time and preparations have been in place. I worked in publishing during the tobacco ban: the turnaround for that was quite tight, but it was quite transparent and it happened without too much trouble. I think that a deadline is entirely right and suitable and that the deadline proposed is reasonable. I would like to hear reassurance from the Minister that there will be clear scheduling for these measures.

I would also like very briefly to address Amendment 151A, from my noble friend Lord Black, and the related amendments. On this, I feel utterly conflicted. The harms caused by online advertising have been mounting over several years. They are currently far too damaging and they are set to grow, both in scale and sophistication, without any clear sight of regulatory control. That is of grave concern, and the points made by my noble friend were very persuasive: I think he was right about bringing in compliance by the platforms. On the other hand, I accept that government regulation in this area is so off the pace; the online harms Bill is so far behind and the online advertising review has taken so long that the Government are just not in a position to implement the measures in this amendment.

I shall not be supporting these amendments in any votes that might happen, but my sentiments are very much along those lines. I ask the Minister to say very clearly what the Department for Health and Social Care and the Government will do around these concerns, not just on junk food advertising but on the advertising of alcohol, betting and non-surgical cosmetics, which all face similar concerns around the explosion of complex and persuasive online advertising which is underregulated.

Photo of Lord Krebs Lord Krebs Crossbench

My Lords, I shall speak in support of the amendments in the name of the noble Lord, Lord Bethell, to which I have added my name. I do not really need to say anything more than has already been said. We know that this country, according to the World Obesity Atlas published last week and supported by the World Cancer Research Fund, is now top of the European league table for projected levels of female obesity by 2030 and joint top for projected levels of male obesity. Sadly, it is probably already too late to stem this trend, but by acting now on these measures we might be able to protect the next generation. That is why I support the idea of having a firm deadline by which time the measures will be introduced.

I actually wanted to speak in slightly more detail about Amendments 148, 150 and 152 in the name of the noble Lord, Lord Moylan. As he explained, they are really just one amendment.

I promise you that this was not set up, but I have in my hand the very Grenade bar to which the noble Lord, Lord Moylan, referred. I wish to explain why this Grenade bar should definitely not be excluded. I am grateful to Dr Emma Boyland, of the University of Liverpool’s Institute of Population Health, for giving me a briefing on the Grenade Carb Killa bar—this particular one is high-protein, low-sugar, white chocolate and salted peanut. I bought it at the weekend from Holland & Barrett, in its health food section; it is marketed and advertised as a healthy product. Is it a healthy product? The answer is no.

First of all, no age group in this country is short of protein. We simply do not need to eat more protein. So the fact that this bar is high-protein is completely irrelevant in terms of health benefits. Secondly, remember that HFSS is high fat, salt and sugar. The bar may be low-sugar, but what about fat? It contains a third of an adult’s recommended daily limit of saturated fat; it is definitely high in fat. It also contains more salt than a bag of salted crisps. Is it right to exclude something that is fatty and salty from the definition of HFSS? I am convinced it is not right, and therefore I completely reject the argument of the noble Lord, Lord Moylan. These products should not be excluded from the measures proposed in Schedule 18 to the Bill.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

My Lords, I have two amendments in this group—Amendments 154 and 155—though they are rather different from those discussed in the debates that we have just heard. I declare my interest as the president of the Hospital Caterers Association.

We have heard a lot about the risk of obesity, but we also know that many patients coming into NHS hospitals come in with nutritional issues, where good food and good nutrition could very much help them on their way to recovery. The research has indicated problems where patients are not feeding properly.

We are very grateful to Ministers for the meeting we had with the Hospital Caterers Association and the National Association of Care Catering, with the noble Baroness, Lady Barker. We are very grateful too that Clause 161 sets out specifications for hospital food standards.

There are just two quick points I want to make. First, it is a great pity that we do not have a similar process in relation to the care sector—care homes, in particular. One of the amendments relates to that: we want to see the provisions extended to the care sector. We also want to ensure that staff working in the care sector are suitably trained and that there is a suitable framework to ensure there is a high level of professional staffing.

My second point relates to the National Health Service. Although lip service has always been paid to good standards of hospital food and nutrition, unfortunately the boards of NHS organisations have often found it difficult to provide the resources to enable that to happen. The suggestion in my first amendment is, in fact, that a board-level director should be appointed to oversee this to ensure that the standards laid out as a result of the Bill, when it becomes law, will be put into practice. Alongside it go similar provisions in relation to ensuring that we have high-quality staff who can take advantage of a focused approach to training, which, at the moment, has been missing because a lot of the national infrastructure for training for staff in the NHS in the ancillary services has been neglected.

I hope that, following the discussions we had with Ministers, the noble Baroness will be able to be positive in relation to this tonight.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat Lords Spokesperson (Digital) 10:00 pm, 7th March 2022

My Lords, the noble Lord, Lord Black, has put a convincing and comprehensive case for his amendments, which I have signed. He has knocked back nearly every argument made by the Government in this House and in correspondence against a level playing field being established for platform liability.

In his letter after Committee, the noble Lord, Lord Kamall, said:

“The scale and speed of advertising online, as well as the personalised nature of advertising and the lack of transparency in this system, makes it difficult for platforms to have control over what is placed on them.”

They have far more control than the broadcasters. They run their own digital advertising agencies. Facebook and Google have massive market share in their own individual digital markets.

It is extraordinary that the Government are buying these arguments from the social media platforms. They are on extremely thin ground. If the noble Lord, Lord Black of Brentwood, pushes these amendments to a vote, we will support him.

Photo of Baroness Boycott Baroness Boycott Crossbench

My Lords, I support noble Lord, Lord Bethell, in his amendments demanding a timescale for the ban on such adverts. Advertising is the only business in the world that spends an enormous amount of money and then suggests that it does not work. It is a curious state of affairs that the advertising industry, as well as the food industry, which spends upwards of £0.5 billion a year on advertising HFSS food, says that advertising does not work, but the fact is that it does.

Research has shown that half of all food ads shown in September on ITV, Channel 4, Channel 5 and Sky One were for HFSS products. That number rose to nearly 60% between 6 pm and 9 pm. Ofcom research also suggests that children’s viewing peaks in the hours after school, with the largest number of child viewers concentrated around family viewing time, between 6 pm and 9 pm. People in food policy have worked, as I have worked, for a very long time for this ban. We thoroughly applaud the Government for doing it. I also applaud my noble friend Lord Krebs for taking apart that protein bar, because it illustrates the way in which the food industry works. I have heard all too often, especially when I first came into this House—albeit not so much now—people saying, “All you need to do is exercise to get rid of the excess weight.” We know that that is a line put out by the industry. The industry is very clever. Yes, they have managed to sell the noble Lord, Lord Moylan, their protein bar, but they have not sold it properly. I hope that, with this ban, the Government will look at all the other sneaky ways in which food companies put things through, whether it is high-energy drinks or whatever, that are incredibly destructive to our health. As my noble friend Lord Krebs, said, we have an unenviable first position in the scale of obesity around the world, and we need to end it now.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Chair, Communications and Digital Committee, Chair, Communications and Digital Committee

My Lords, I should declare that I am chairman of the Communications and Digital Select Committee. I support Amendment 151A and the others in the name of my noble friend Lord Black of Brentwood. I do so because this is a matter of fairness.

Following on from what the noble Baroness, Lady Boycott, has just said, the broadcasters have accepted that a pre-watershed ban on junk food advertising is coming. They and I also understand that the online platforms face a complete ban. However, once again, the legacy or heritage media businesses are the only ones which will face serious financial penalties if they make a mistake and, for whatever reason, allow a non-compliant piece of advertising to slip through and appear on air. I am sure that my noble friend the Minister will emphasise that the difference between the online platforms and broadcasters is only therefore about regulatory burdens and sanctions, but that is the point, and it is why this is unfair.

Why should the media businesses which will be significantly disadvantaged commercially by the ad ban be the only ones fined if something goes wrong? Why should the media businesses which continue to lose ad revenue to online platforms stand by and watch as those same platforms—Google, Facebook, YouTube—are not yet subject to any statutory regulatory regime to prevent their unfair market dominance? How can it be right that they shrug their shoulders when it comes to liability for the ads they profit from? They profit from them to a much larger degree than the broadcasters profit from the ads they run.

When I spoke in Committee, the Minister said in reply that all this would be dealt with via the online advertising programme and that a consultation would start shortly. Any progress on that will be welcome, but there is a limit to how much consultation the media industry can take. What it needs is action, which means legislation to deal with these various digital market and competition issues that currently favour big online platforms and are detrimental to everyone else, including consumers. To fail to do that while prioritising legislation that hits the traditional broadcasters more harshly than online platforms is unfair.

As I have said, those of us who support the amendments in the name of my noble friend Lord Black do not want to delay the ban on junk food advertising, but in introducing it, we should make sure that liability for mistakes and failures to comply with regulations is fair. The Bill as it stands is not. I am very grateful to the Minister for the time she has given to hearing these arguments, but urge her to reconsider the merits of these amendments, especially bearing in mind that we are still a long way from new legislation that will finally level the playing field across the media sector. If my noble friend divides the House, I will vote with him.

Photo of Viscount Colville of Culross Viscount Colville of Culross Crossbench

My Lords, I too am very pleased to support Amendment 151A and the following amendments. I also read the letter from the noble Lord, Lord Kamall, to Peers following the debate on this in Committee. He said that it was

“difficult for regulators to keep pace with advertising code breaches without the cooperation of platforms who hold significant data on the process, and host the services”.

That seems to me a recognition of their responsibility in the ad process. As the noble Lord, Lord Black, said, ads create the vast majority of the platforms’ revenue and so they are responsible for controlling their content.

I read a recent survey on the effect of online advertising on young people, which was carried out by the healthy living charity, Global Action Plan. It showed that the average teen sees on Instagram alone one ad every eight seconds. That is the equivalent of 444 ads per hour. The survey also revealed that Facebook’s ad manager directly targeted young people with risky and unhealthy advertising, including for fast food and alcohol. It was the platforms’ data and algorithms which directed these ads, and they need to be made responsible for any restrictions on HFSS advertising as quickly as possible. There are other, more insidious forms of online advertising, such as product placement in digital content, especially among influencers. All these should be made the responsibility of the platforms to control. I hope the amendments will do just that.

I was glad to hear that the Government are looking at the online advertising programme, but I, like many noble Lords, am concerned by the laggardly start. Can the Minister say when she thinks the consultation will conclude? I hope that will happen quickly, because every day, thousands of young people are going to be harmed by the delay. I also ask the Minister to guarantee that platform liability for hosting product placement and others sorts of insidious advertising will be in scope of the consultation.

Photo of Baroness Barker Baroness Barker Liberal Democrat Lords Spokesperson (Voluntary Sector), Deputy Chairman of Committees

My Lords, at this late hour, I simply want to express my support for the noble Lord, Lord Hunt, and Amendments 154 and 155 in his name by making three simple points. First, we are learning all the time about the importance of nutrition and health. We are also understanding increasingly how poor nutrition can have a devastating effect on recovery and health inequality. It is therefore remarkable that in both hospitals and, more particularly, care homes we have no standards or training for the people involved in the preparation and delivery of food. That is a serious omission.

Therefore, it is time for us to move away from the traditional way in which care catering has developed, which is by scandal and omission, turning it round into a positive by developing new standards of training. We also need to try to get particularly teachers in colleges to get young people to understand that catering in care settings is far more complex then catering in restaurants. Within the NHS we have the opportunity to drive some world-beating standards on nutrition and care, and that is all that we are asking for by asking for this framework and these amendments.

Photo of Lord Grade of Yarmouth Lord Grade of Yarmouth Conservative

My Lords, I am tempted to express my concern that the computer of the noble Lord, Lord Moylan, may have been hacked by the noble Lord, Lord Krebs, with the coincidence of the Grenade bar being at the heart of their contributions to this debate.

That said, I offer a word of warning about the imposition of a hard deadline for the implementation of the advertising ban. However desirable a deadline, it is actually impractical. I do not seek here to delay anything; I accept totally that the argument about the futility of an advertising ban has been lost, and we move on to the implementation. A deadline of 1 April—and all the delegated powers—creates a huge number of time-related consequences following that. Advertising, as well as the delegated powers and the need to produce and consult on guidance on secondary legislation, is a consequence of this. Companies will have no time to assimilate what the new rules mean for their advertising campaigns. Advertising campaigns can take up to a year from conception to final production. The Government have yet to publish the secondary regulations consultation, which will lay out exemptions, such as how SMEs are defined for the purposes of the restrictions.

Once the Bill becomes law, which will not happen for several months, Ofcom—that wonderful organisation —will then need to delegate to the relevant regulator, which, according to the amendments, will not happen until two months after the Bill receives Royal Assent. The designated regulator—most likely the ASA, as we heard—will then need to hold a consultation on the details of the guidance and process the consultation responses before putting out final guidance, which will then take several months. Only once this final guidance is published will brands be able to implement it when it comes to their marketing campaigns.

Some noble Lords may argue that the Government have already made clear what are permissible and what are not identifiable HFSS products and that industry and businesses can prepare around this. The questions and detail of the guidance are far more complicated than that. Industry has a plethora of unanswered questions that need to be resolved and which will take time, covering everything from how liability will apply to third-party delivery companies to the definition of transactional content and what rules might mean for loyalty apps. I hope that your Lordships will reject Amendments 149, 151 and 153 to avoid a chaotic transition to the new rules.

I finish by speaking in support of my noble friend Lord Black’s Amendment 151A and the resulting amendments. My noble friend laid out the case extremely well and I hope he will seek the opinion of the House on this matter. I can add nothing to the arguments that he and other noble friends have laid out. If there is a vote, the simple choice of the House is: do we want to let these monolithic, monopolistic platform giants carry on getting away with murder in this country? They have been allowed to get away with stealing copyrights, they do not regard themselves as publishers, and they create more harm—which, one hopes, the online safety Bill will seek to amend.

This is discriminatory legislation, which makes a difference between two people doing the exactly the same thing: the broadcasters, who will be liable, and the online platforms, for which there is no parity at all. It is about time we recognised that we must deal with these people and regulate them properly and sensibly. This is a perfect opportunity, and I hope your Lordships will support the amendment.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 10:15 pm, 7th March 2022

My Lords, I wish to briefly reinforce a point made by the noble Lord, Lord Krebs, backed up by the noble Baroness, Lady Boycott, about how so much food is advertised as being healthy when it is clearly nothing of the sort. I want to pick up the point made by the noble Lord, Lord Moylan. I will not advertise any further a particular brand of allegedly healthy food for athletes, but these foods are presented as though they are consumed by people who have just done extraordinary physical efforts—as exemplified in your Lordships’ House by the noble Lord, Lord Bethell, who, I can attest, I saw at the APPG for Running, looking like he was appropriately involved in the acts that he was supporting. However, more than half the calories consumed in the UK are in ultra-processed foods. That figure rises to 65% for children and teenagers. We need action urgently. This is a health crisis; it is an epidemic.

Photo of Baroness Walmsley Baroness Walmsley Co-Deputy Leader of the Liberal Democrat Peers

My Lords, I wish we were talking about restricting the advertising of gambling; that would have more effect on the health of the country than this. However, these are very important measures. Before I talk about the three major groups in this grouping of amendments, I thank the noble Lord, Lord Hunt, and my noble friend Lady Barker for raising the really important issue of nutrition to patients in hospital and people living in residential care homes.

The rest of the amendments fall into three broad groups. First are the amendments in the name of the noble Lord, Lord Moylan. While he was telling us the very sad story about the manufacturers of the Grenade bar, about how much protein it has and how little carbohydrate, I was wondering: what about the other major nutrient, fat? Noble Lords will remember from their biology lessons that, gram for gram, fat has twice as many calories as either carbohydrate or protein, and if you eat an awful lot of those bars, you will get fat—the “F” in HFSS foods. Of course, one “S” in HFSS foods stands for salt, and the noble Lord, Lord Krebs, has now told us exactly what is in that bar—far too much fat and far too much salt.

However, the noble Lord, Lord Moylan, raises a point which I raised in Committee: the nutrient profiling model is 11 years old. I asked the Minister whether there are any plans to update it, because companies really need up-to-date information about exactly what will fall within the ban and what will not. So I ask the question again: are there plans to update that 11 year-old guidance? We really do need it, because then companies such as the one mentioned by the noble Lord, Lord Moylan, and many others, will really know what they are dealing with. It certainly does not sound to me as though that bar will fall outside the restriction on advertising.

I have added my name to the amendments in the name of the noble Lord, Lord Bethell. I remember when, in Committee, the Government introduced this power to extend the deadline—they did not say how long for—and I asked what this was for and why the Government needed to extend the implementation of these restrictions. The Minister, the noble Baroness, Lady Penn, said it was just in case there were any hitches with the consultation. I think the noble Lord, Lord Bethell, is right and there is certainly a hint of long grass in what the Government were trying to do. I was a bit suspicious about it in Committee, and I still am. I support what the noble Lord, Lord Bethell, is trying to do.

All the industries concerned with these measures have had plenty of notice of what the Government wanted to do, and I think, once the detail comes forward, they will have had plenty of time. Perfectly reasonably, the noble Lord, Lord Bethell, is asking for that power that was taken to extend the deadline to be limited to just three months. That is quite enough.

As for the amendments from the noble Lord, Lord Black, I agree with my noble friend Lord Clement-Jones, although not necessarily for the same reason. Of course, there is a fairness issue here, but I think that, if the responsibility for implementation and making sure there was compliance was extended to online platforms, it would strengthen the objectives of these measures from the Government, which I support. Therefore, if he puts his amendment to the vote, we will vote for him.

Photo of Baroness Merron Baroness Merron Opposition Whip (Lords), Shadow Spokesperson (Health and Social Care), Shadow Spokesperson (Digital, Culture, Media and Sport)

My Lords, we have had a considerable debate on these issues, in Committee and this evening in your Lordships’ House. From these Benches, we absolutely support the provisions to tackle obesity. The reasons have been gone over many times, but I make one point in respect of children—that children with obesity are five times more likely to become adults with obesity, and increase their risk of developing a range of conditions, including type-2 diabetes, cancer and heart and liver disease. It is incumbent on us to take the steps that are necessary.

Given the lateness of the hour—and I know that noble Lords wish to get to the question whether there is to be a Division—I shall focus my comments on the amendments relating to advertising, Amendment 151A, in the name of the noble Lord, Lord Black, and the subsequent amendments, to which I have put my own name. There has been a great clarity of argument as to why those amendments deserve favour, but the one that sticks out for me is about ensuring the effectiveness of the legislation that we are speaking about.

We already know that legislation can have a huge impact. For example, the soft drinks industry levy has led to manufacturers reducing 44 million kilograms of sugar each year from drinks in the UK. We also know of the support for the measure of the watershed for advertising of high-fat sugar and salt products—in other words, to protect children from those influences. We know that the measure is supported by organisations such as the British Heart Foundation, the Food Foundation and many other experts as being able to make the difference, because children are influenced by advertising. We should really be ensuring that children see adverts for healthier food and drinks.

Should the will of the House be tested on these amendments, these Benches will certainly be in support, because we feel that the Government should make sure that the proposed pre-9 pm ban on advertising unhealthier foods on TV, with a total ban online, has to be implemented effectively and appropriately across all media and platforms. If it is not and remains as it stands, it will not do the job that it is intended to do, and we will miss an opportunity, which we hope the Minister will reflect on, as the case has been made so clearly and directly.

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

My Lords, I thank noble Lords for this debate. I will turn first to the amendments in the name of my noble friend Lord Bethell. As noble Lords are aware, the Government introduced an amendment in Committee to enable adjustments to the date of commencement of the HFSS advertising restrictions, should emerging issues require it to be moved.

We will continue to work with regulators and businesses to ensure that guidance is produced promptly to support timely implementation; our intention remains to implement restrictions from 1 January 2023. We think that date balances ambition with the importance of sufficient time for business to prepare. However, limiting this flexibility to a period of only three months, as proposed by my noble friend’s amendment, would be counterproductive, as that timeframe may not allow us to respond adequately to any unforeseen challenges or ensure smooth delivery of this policy.

Turning to the amendments tabled by my noble friend Lord Moylan, I seek to reassure him that our current approach provides an overall assessment of the nutritional content of products, as it accounts for nutrients of concern as well as beneficial nutrients. As such, we consider it to be an effective mechanism for permitting healthier products to be advertised, while still restricting those which are less healthy overall. The detail of the products in scope will be underpinned by secondary legislation, which can provide the necessary detail and be adapted in response to future changes to products on the market. The Government will consult soon on this and other definitions included in the draft regulations, such as the small and medium enterprise exemption.

I turn now to the amendments on platform liability. The Government believe that the online advertising programme remains the best way to address such issues on an industry-wide basis, rather than in a piecemeal fashion. I am pleased to be able to confirm that the DCMS consultation, which should launch in the next fortnight, will examine the harms associated with paid-for advertising online and consider the measures that could apply to platforms and others in the supply chain in order to increase accountability and transparency.

It is our intention to legislate on those conclusions in this Parliament, as we share the view that it is the right time to put in place holistic measures to tackle platform liability. However, it is also right to bring forward powers in this Bill now, so that we can begin to tackle obesity via restrictions to TV, on-demand programme services and online, in line with current enforcement frameworks for advertising that are familiar to industry. Platforms are not able to pre-vet adverts in the same way that broadcasters can. We recognise that there is a need to address that issue, but to do so in the round.

Amending this Bill in relation to online platforms without wider consultation and at a late stage risks unintended consequences. Those could include undermining the clear responsibility of advertisers to adhere to the restrictions that we are debating; interfering with the competitive dynamics that apply across the online advertising supply chain; not addressing accountability and transparency issues that apply elsewhere in that ecosystem; the danger of the restrictions applying to a wide range of internet service providers beyond those intended, including intermediaries and publishers; and not providing regulators with the right tools, funding or structures to regulate effectively. Were this amendment to pass, the Government would need to consider very carefully whether implementation from 1 January 2023 remained possible. The risks posed by creating a more complicated regulatory framework are likely to result in a delay.

Photo of Lord Grade of Yarmouth Lord Grade of Yarmouth Conservative

My Lords, I am grateful to my noble friend the Minister for giving way. Do the Government understand the difference between mass brand advertising on free-to-air linear television and the direct addressability to individuals online, where they have all the data—the address, postcode, email address and phone number—of the kids they are advertising to? The Government seem not to understand the pernicious nature of advertising online.

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

My Lords, in our 2020 consultation on advertising, we outlined our concerns about online targeting of adverts, so we did look at the approach suggested by my noble friend. There is no evidence to suggest that targeting online does not account for the use of shared devices and profiles between parents and children, the communal viewing of content or false reporting of children’s ages. This—combined with concerns around the accuracy of internet-based targeting and other behavioural data as a way of guessing a user’s age and a lack of transparency in reporting online—shows why the Government believe that we need to introduce these advertising restrictions online in the way that we have.

I was about to address the points that my noble friend made. He spoke against the amendment restricting the flexibility that the Government have in implementing these provisions because of the time that it might take to implement these measures, because they are complex and have a long feed-in time, because we must get guidance out to industry, and all the other measures that we have talked about. We consulted on these measures and on different approaches to them previously. We have engaged business in the way that we are taking these measures forward to give them time to prepare.

However, there is a tension between that and what the noble Baroness, Lady Walmsley, said: businesses have plenty of notice on the approach that we are taking and plenty of time to prepare, and that a fundamental change in approach to how we are dealing with online advertising in this Bill for these measures today would not result in any delay. I emphasise that we completely agree on targeting online advertising as well as broadcast advertising. That is why it is in the scope of this Bill and the provisions that we are talking about. We also agree that we must address the question of platform liability. We are committed to doing so as part of that wider piece of work on the online advertising programme.

My noble friend Lady Stowell talked about the issue at heart being one of parity between broadcasters and online platforms. I understand how important that is, but we must not forget the issue at the heart of all of this, which is bringing in measures to protect children who are unhealthy and at risk of obesity so that they do not them see messages which are inappropriate; we know the statistics. This Bill, and the measures in it which we do not want to delay, do this. We will address the question of online liability.

Turning to the amendments tabled by the noble Lord, Lord Hunt of Kings Heath, as he is aware, officials are working closely with NHS England to implement the recommendations from the Independent Review of NHS Hospital Food, which was published in October 2020. One of the recommendations from that review was for NHS England to publish an updated version of the NHS food and drink standards document. It is intended to be published in May and I assure your Lordships that it will contain a standard which requires that NHS trust boards have a designated board member with responsibility for hospital food.

We have been clear that the detailed standards and requirements in relation to hospital food should be provided in secondary legislation and not in the Bill. As with the advertising restrictions, this approach will enable Ministers to act in future years if new or emerging evidence suggests that amendments are needed.

The standard of food in social care settings is just as important as the standard of food in health settings but the context is different. This Bill already includes powers to set food standards across the hospital estate. However, adult social care settings are fundamentally different from hospitals, with services based on the principles of personalisation and choice. Regulated care settings that provide food will mostly be residential care. These are people’s homes. As such, their needs, wishes and preferences should be well known to staff, and blanket requirements are unlikely to be appropriate.

The Care Quality Commission regulates hydration and nutrition across health and social care as one of the fundamental standards of quality and safety. It also ensures that staff are adequately trained, and its guidance recommends that all staff complete the care certification which includes content on food standards. The Government are currently working with the sector on a new delivery model for the care certificate to improve the quality of training, so setting out those levels of training in legislation would not be proportionate at this time.

Therefore, I hope that my noble friend can withdraw his amendment, and that other noble Lords will not move theirs when they are reached.

Photo of Lord Moylan Lord Moylan Conservative 10:30 pm, 7th March 2022

My Lords, especially at this time of night, it is very taxing to try to summarise what is a complex debate raging across a number of issues, and in particular to thank everyone who has spoken. If I fail to thank everybody by name, I hope I will be forgiven in the interests of brevity, but I thank my noble friend the Minister again, not only for her remarks but for the attention, care and hard work she has put into addressing all these issues with me and many other noble Lords who have spoken on the various topics we are addressing.

I have to thank one or two other noble Lords. In particular, I express my gratitude to the noble Lord, Lord Krebs, who went out, no doubt at considerable personal risk and with some arduousness, to purchase an example of the Grenade Carb Killa. I had never seen one in captivity or in nature until he produced it in the Chamber today. That in itself is something I am very grateful for. He chose the one that I think is called “white chocolate” or something like that.

Here the noble Lord, Lord Krebs, has been helpful to me. I believe there are 14 different flavours of Grenade Carb Killa. It is the view of the confectioner that manufactures them that some will comply with the profiling model while others will not. Perhaps next time the noble Lord could try a different flavour and have it tested in Liverpool, I think it was, and that would generally help to advance things. The difficulty for the company, though, is that this is not a game. It needs to know which of these products has to be reformulated and how for it to remain compliant and stay in business. This was a very helpful illustration of the difficulties.

One other noble Lord I will mention is my noble friend Lord Bethell, who referred to the tobacco advertising ban as if it were some sort of comparison. There is no comparison. Nobody had to carry out a profiling exercise to decide whether something was a cigarette: it was a cigarette or it was not. There was no question of putting it through a model to discover it was a cigarette. Nobody in the cigarette manufacturing business had to reformulate their product and market test it to make it compliant with regulations. What you can do with a tobacco ban very quickly is simply irrelevant to the hurdles the Government are setting in front of businesses.

Apart from that, the many noble Lords who spoke on other aspects of the Bill, some with great knowledge and experience, have illustrated something that I hope everyone in the House can agree on, with the possible exception of my noble friends on the Front Bench: it really is a crying shame that issues of such importance and complexity should be rammed into a major Bill in a schedule when in fact it must be clear to us all now that this schedule should really have been a Bill in its own right, and should have received the attention and scrutiny these complex commercial and nutritional issues deserve. With that, I beg leave to withdraw my amendment.

Amendment 148 withdrawn.

Amendments 149 to 151 not moved.