Clause 3 - Advertising: newspapers, periodicals etc.

Tobacco Advertising and Promotion Bill – in a Public Bill Committee at 3:00 pm on 1 February 2001.

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Question proposed, That the clause stand part of the Bill.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I am conscious that we shall soon be interrupted by Divisions in the House. I have no wish to hold up our proceedings. We have a firm end date for the Committee proceedings and it is important to us to ensure that we spend enough time on the measures that we regard as important. By not putting any mileposts into the timetable, the Government have left us with the responsibility of doing just that. We can have a relatively short clause stand part debate. That is not because the clause is not important. It is important. It is hard to debate such clauses without debating the defences. I want to probe the Minister a little about how the clause will work in practice. We spent little time on Second Reading discussing enforcements.

Staff in corner shops and newsagents work extremely hard. The hours are often anti-social, and it is literally a rush in the rush hour, with many commuters in the shop, and school children calling in to buy sweets. Shop workers are ill-prepared to meet the challenge that clause 3 sets them, particularly with regard to newspapers, periodicals and other products that contain tobacco advertisements. It is not easy for those who sell publications or offer them for sale, as defined in subsection (c).

How will the clause be enforced? Will trading standards officers visit every corner shop to ensure that each newsagent has checked hundreds of periodicals and expect him to put his hand on his heart, and say, ``Well, I assure you that, as far as humanly possible, I have checked that the publications on sale in my premises do not contain tobacco advertising—but, of course, I could always make a mistake.''?

Such checks would involve much work for trading standards officers, and they are already stretched in fulfilling the important duties that they undertake. Many corner shops and newsagents selling publications could be caught by the clause. How would it work in practice?

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

When I was in business many years ago, I had a nasty experience in connection with the words ``publishing'' and ``published'', and the definition of those words is at the heart of the clause. Anyone, who is in business ``publishes'' in the United Kingdom, and in line 35 of clause 19

``references to publishing include any means of publishing''.

I was given a document that allegedly contained a libel by somebody who applied for a job. I passed the document on to somebody else, and was advised by a lawyer that I had ``published'' that document. I thought to myself, ``Surely that is not the meaning of the word `published''', but it is. I have a piece of paper that my hon. Friend the Member for Tewkesbury (Mr. Robertson) has just passed to me in his own handwriting, and he has therefore published this document. If I were now to give it to my hon. Friend the Member for Meriden, I would have published that document to her. That is the legal meaning, as I understand it, of publishing.

Members of the Committee reading the word ``published'' in clause 3 will, I suspect, understand it to mean that somebody gets a printing press, collates the information, and sends it out for publication. In fact, under that definition, a newsagent who passes on something from their shelves, even if it is printed and produced elsewhere, is publishing it. A large number of retailers have been threatened with legal action if they refuse to remove publications from their shelves because they are publishing a libel, or untruth, or something of that nature to which somebody objects.

Photo of Laurence Robertson Laurence Robertson Conservative, Tewkesbury

I ought to declare a registered interest in the tobacco industry, but it is a different point that I wish to raise. Many years ago there was a legal case in which someone sold on a bottle of water or fizzy pop, which contained something that it should not, and the person who sold it on was held liable. Is that an accurate analogy?

Mr. Bruce: Certainly. With regard to product liability, one is part of a chain. Let us suppose that a 12-year-old is reading a tobacco advertisement. If that advertisement is in Le Monde, which is produced in France, the individual who sells it on is, according to the legal definition of the word, publishing, not distributing Le Monde, unless there is a provision to counter that. The word ``publishing'' includes simply passing it on, without even recopying it, to another person. I hope that the Minister will be able to respond to that point. As I said, it would have been nice to have somebody from the Home Office sitting on her team, who could advise her of the legal definition. I am sure that legal advice can be sent for if necessary.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

The hon. Member for Meriden raised concerns about how a corner shop might be covered by the clause and the Bill generally. The defences for the corner shop, as for the proprietor or editor of the publication and everybody else involved, are set out primarily in clause 5, which we shall discuss later. Broadly, if such persons did not know, had no reason to suspect or could not reasonably have foreseen that tobacco promotion was the effect of the advertisement, they will have a defence. However, if a retailer had reason to suspect, there would be a case to answer. If a retailer did not know and had no reason to suspect that the newspapers that he was selling contained tobacco advertisements, or, as we shall discuss under clause 4, if the principal market of those newspapers was outside the UK, nobody would expect him to check every magazine that he sold.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

The problem is that there is an active and a passive attitude. One can passively make no effort to know, and say, ``Well, I didn't know.'' Alternatively, there is the active response of someone who behaves diligently and says, ``I have done my best.'' The difficulty is that the passive response is the easiest and is most likely to allow people to get away with a transgression.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

That is why the wording is

``had no reason to suspect''.

Clearly, if a proprietor had good reason to suspect and deliberately turned a blind eye, he would have a case to answer under the Bill. If he had no reason to suspect, he would have no reason to search every magazine on his shelves either.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

If a newsagent in this country speaks French, has a French clientele, imports Le Monde, reads Le Monde every day and knows that it promotes tobacco products, is he committing an offence because he is part of the publishing process of providing such an advertisement to his clients?

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

A different defence would exist in that situation. We shall discuss that defence under clause 4, in relation to publications from outside the United Kingdom, the principal market of which is not the United Kingdom.

The hon. Member for South Dorset raised concerns about publishing. The underlying premise of the Bill is that everyone in the chain is potentially liable.Whether the definition of publishing to which he refers is broad or narrow, if a person is distributing or offering an advertisement for sale in the course of their business, they will have a case to answer under the Bill. I emphasise that it must be during the course of business. Passing a piece of paper privately from one person to another would not be regarded as publishing an advertisement in the course of a business, so the provisions would not apply. Clause 3 makes it clear that everyone in the chain is potentially liable; various defences in terms of reasonable circumstances follow on. I ask the Committee to accept the clause.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.