Clause 4 - Advertising: exclusions

Tobacco Advertising and Promotion Bill – in a Public Bill Committee at 3:15 pm on 1 February 2001.

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Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health) 3:15, 1 February 2001

I beg to move amendment No. 5, in page 2, line 17, leave out from `in,' to `information' in line 18 and insert

`a communication with a person who has requested, or who has previously requested,'.

The amendment is directed at specialist tobacco suppliers who, as I said in the debate on clause 1, are in danger of being hit hard by the Bill. The clause does not apply exclusively to specialists, but they are affected most by its drafting. The amendment, which changes subsection (2), would allow communication between a business and its known customers to be legitimate when a particular request has been made.

Some specialists who do not own shops depend heavily on mailing lists for their clientele. If they have to wait for a particular request before making a communication, they may face diminishing returns. The number of people specifically requesting information will reduce over time. In other words, it will be a problem if the specialists cannot initiate communication. A cigar supplier, for example, may want to initiate communication by informing customers whether the Cuban tobacco harvest will impact on the quality of the product or on prices. Under the clause, however, a specialist supplier would have to wait for requests for that information to come in.

We all know that mail order companies often have a tick-the-box arrangement and if the box is unticked a customer can be inundated with all sorts of unwanted information. One learns to avoid that. Would that sort of arrangement help the specialist to overcome the problem? A mail order form often has a default arrangement; people will receive a pile of junk mail unless they tick the box. Does the Minister accept that such a default position could constitute a request?

The purpose of this probing amendment is to get to the bottom of the restriction on communication between businesses and their customers. The net should be widened to include not just those who have requested information but those who have requested it—or transacted with the business—in the past. Customers tend to be a passive lot, but may respond to proactive information from a direct mail supplier. If the clause prevents suppliers letting customers know what is on offer—or, say, that the price of cigars is going to soar because of a disastrous harvest in Cuba—it will be restrictive for suppliers.

The amendment would allow the existing self-regulatory rules, which allow tobacco advertisements to continue; tobacco advertisements are allowed if they are contained in communications to individuals on a database of known adult smokers, who have confirmed their status as such and who always have the right to be removed from that database. That was the protection afforded by the voluntary code. Such a right is also provided by the Data Protection Act 1998. How will the Bill sit with the rights conferred under that Act?

We all know that we must now be extremely careful with information. It is not that we cannot operate unless we receive a particular request, but we are limited. The amendment would provide adequate protection for individuals, while permitting companies legitimate commercial freedom, especially specialist tobacco suppliers. Without it, the Bill will place heavy constraints on some small suppliers who depend on direct mailing for their businesses. In effect, their clientele is likely to diminish over time to the point at which they may go out of business. We can foresee such consequences, and we want to avoid that happening.

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

I support my hon. Friend's argument in favour of the amendment. If we are trying to restrict the provision of useful information to smokers about how they can reduce their health risk, compiling a database of smokers, who have already taken some proactive action by asking for information, is a sensible way in which to control the flow of information. By removing that, we are, in effect, saying to the tobacco industry, ``You will just have to keep finding ways in which to get people to respond to advertisements.'' I am not even sure whether phrases such as ``If you would like some information about this particular product,'' can be classed as an advertisement to promote tobacco products.

People will be continuously persuaded to contact tobacco companies. One way in which the company can ensure that people ask for information is to put a request form inside a cigarette packet. That is a sensible way to pass on information, because the person has already bought the cigarettes. It makes common sense that names should not have to be deleted from a database of people who have asked to be kept informed of offers, especially when all the other requirements of keeping databases are in place.

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

The problem with the amendment is that it would create a massive loophole in the Bill by allowing extensive direct marketing by tobacco companies. The fundamental flaw in the Opposition's argument is that 70 per cent. of smokers say that they want to give up smoking. Smokers who at one time in their lives wanted further information about a product may six months or a year later—even less than that—decide that they want to try to give up smoking. Given how addictive tobacco smoking is, and its huge health impact, people should be supported when they try to give it up.

We know the type of direct marketing carried out by tobacco companies. For example, Imperial Tobacco sent out large numbers of free samples with their new Concept cigarette-making pack early in the new year, just as many smokers were trying to give up. To have direct mail or promotional products coming through people's doors when they are trying to give up, even if they had requested that information a year previously, undermines their attempts to give up smoking in what are often difficult circumstances.

Given the health impact, we should be trying to support people who give up smoking. People have a right to request information about tobacco products. Communications in response to such a request should be limited to it. The amendment would create a massive loophole in the Bill, which is why the Government will reject it.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I hear what the Minister says and her argument relates in particular to the bulk sales of cigarette manufacturers. However, she has not dealt with the plight of small specialists. The Bill contains no nod in their direction and is going to be most harmful for them. We have no desire to create a massive loophole that will undermine the agreed target of reduced prevalence, but the position of tobacco specialists is difficult.

Photo of Kevin Barron Kevin Barron Labour, Rother Valley

I wonder why the hon. Lady is worried about tobacco specialists, as the clause does not relate to them. Tobacco companies in this country are well known to hold databases of millions of names. Those databases would provide a way round the ban on the advertising and promotion of tobacco if we did not ensure that companies could not use them to contact people directly, especially people who have decided to stop smoking.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

Our problem with the Bill is that—in debating clause 1—we were unsuccessful in persuading the Government that it will be disproportionately hard on specialist tobacco producers. Little distinction is made for the specialist tobacco industry. When we debate clause 6, we will discuss their shops but, as I said earlier, they do not all have shops.

The clause is targeted mainly at closing down possibilities for bulk cigarette manufacturers, but in engaging constructively with the Government to try to get the Bill right, we have a responsibility to consider both the big corporate players and the small guys. The Government have said that they are the friend of small business, but they are being unfriendly towards small business, especially the business that does not have a shop, which is singularly not catered for under the Bill. As we shall discuss later, a specialist tobacconist is defined as a shop, but they are not all shops. That is the weakness with the clause as drafted. I was not satisfied by the Minister's response, as she did not touch on specialist tobacconists. Perhaps she will return to the matter.

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

The Opposition amendment does not single out small businesses or specialist tobacconists and would allow the continuation of all direct marketing. That is a massive loophole and we cannot accept the amendment. A persuasive case has not yet been made for specialist tobacconists or for particular small businesses needing special treatment in such circumstances. However, if the hon. Lady wants to table amendments later, when we discuss specialist tobacconists, I shall be happy to consider them. The amendment does not make a distinction for specialist tobacconists.

Photo of Kevin Barron Kevin Barron Labour, Rother Valley

Does my hon. Friend know of any small specialist tobacco shops in this country that use direct mailing for their customers?

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

I am not aware of those that do, which is why I do not believe that a persuasive case has been made for singling them out for special treatment under the clause. We have provided for special treatment for specialist tobacconists under clause 6 and we shall consider the issue further when we discuss that. At this stage, however, there is not a persuasive case for making a further exemption.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

That is helpful, although the hon. Lady has now set me an interesting little task with which I shall have to do my best to deal. We will need not to complete clause 6 by the end of this evening, as I would beg leave to find the time to table an amendment that would craft what she is describing by first thing on Tuesday morning—or on Report. I shall do my best to engineer that today.

I accept that we do not want to create the massive loophole that the hon. Lady describes, but when we deal with clause 6, we will need to do something about the definition of ``specialist'' and she indicates that we may well be able to. In that case, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health) 3:30, 1 February 2001

I beg to move amendment No. 22, in page 2, line 21, leave out `printed' and insert `published'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

With this we may discuss the following amendments: No. 23, in page 2, line 25, leave out

`by an airline which is not a United Kingdom airline'.

No. 21, in page 2, line 30, leave out subsection (3).

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

Amendments Nos. 22 and 23 are on different subjects, but Nos. 23 and 21 are inextricably linked. We had an interesting exchange earlier about what legally constitutes publishing something. That caught me out, as I had no idea that it could be defined so broadly. However, my reading of this aspect of clause 4 would seem to put a UK-based company that physically prints a magazine but then exports it to another country for publication in a difficult position. It will become guilty of an offence even though the principal market for the publication is not the United Kingdom.

The important issue in this context is where the tobacco advertisement is published. For example, if the European edition of the International Herald Tribune were printed in London, the exemption that that publication would enjoy—as one whose principal market was not the UK—would be lost because it was printed here. There is no argument for making an exemption for a foreign publication dependent upon it not being printed in the UK when, increasingly, the location of printing is simply a matter of economic calculation and nothing to do with the intensive publishing market. We seem to have moved a long way from a health Bill and to be dealing with trade relations. However, this is an important matter that we need to clarify and I would be interested to hear the Minister's reply.

Amendments Nos. 23 and 21 are different, but they tackle the same problem. The clause as drafted exempts in-flight magazines, but only for foreign airlines. That is anti-competitive and would necessarily disadvantage United Kingdom airlines in an international market. It goes without saying that our airlines, as I am sure hon. Members are aware, have taken quite a knock recently with the loss of duty free. The ability to communicate about their tobacco products and their relative prices, together with the different duty arrangements pertaining to the countries to which they fly, has been an important part of buttressing their losses.

This is not an insignificant problem but a very significant one. Why should the in-flight magazine of American Airlines be exempt when read on board an aircraft flying between New York and London, whereas the in-flight magazine of British Airways or Virgin Atlantic would be covered by the Bill? The airline industry is global, like the internet service providers, and we must be careful that we are not disadvantaging companies that have to fight for survival in global markets. The measure is discriminatory and unreasonable, as it applies only to airlines and not to other foreign travel operators such as ferry companies that also have publications on board. Any discrimination between nationality of ownership or registration would be anti-competitive. At the least, that inconsistency needs to be cleared up.

The measure would also prevent airlines from showing clearly details of their duty-free tobacco products on board their aircraft. Now that that is virtually the only place that the airlines can legitimately pursue that aspect of their business, it is difficult to imagine how they will get around that problem. The only solution that I can imagine is that of their staff waiting for a passenger to request the price of the cigarettes that are on board.

Photo of John Robertson John Robertson Labour, Glasgow Anniesland

Does the hon. Lady agree that the business of airlines is to carry passengers? The selling of duty-free goods is incidental, and is only a service.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

The hon. Gentleman must have escaped the deluge of lobbying that we received. Perhaps he is fortunate in living a long way from an airport. Birmingham international airport is in my constituency and local Members of Parliament were made very aware of the impact of the loss of duty-free business. To some extent, that business has been recovered in the airports by the growth of retail shops. However, airlines can sell only a limited range of products that people want to buy on board an aircraft . Differential duty is one of the things that make the product attractive.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

May I put a different interpretation on the hon. Lady's assertion that to some extent there has been a recovery from the losses caused by the abolition of duty free? Would it not be more accurate to suggest that the whole case for duty free was overblown and overstated, and that the risk of losses was never as great as was suggested?

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I do not think that the matter was wholly overblown and overstated, although I can only talk with any confidence about Birmingham international, which is my local airport, as it is that of the hon. Gentleman. One of the ways in which that airport has been able to recover is through expansion—it is creating additional retail outlets. However, it is difficult to create additional retail space at congested airports, such as Heathrow.

Photo of John McFall John McFall Labour/Co-operative, Dumbarton

When the measure was adopted in 1991 by the then Conservative Government, the then Chancellor, Lord Lamont, would surely have had that in mind. It was a unanimous decision of the Finance Ministers.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

With respect, I do not think that Lord Lamont would have had any idea that the airlines would be banned from advertising their own duty-free products on their airline. That is a very important point. I suspect that there would have been even more noise from the duty-free lobby had it known that it was going to be shut down in such a way.

Clear differences are emerging in the Committee on the issue. We regard the measure as unfair. Airlines cannot display their duty-free goods in aeroplanes due to the lack of space. Products cannot easily be displayed on a trolley, and in due course, we shall ask the Government what constitutes a display. Perhaps that aspect of the airlines' business will only be able to continue through the use of displays. We shall, therefore, need a clear definition of one. The airlines will no longer be able to use their in-flight magazines to inform their customers about the value of the tobacco products that they carry on their aeroplanes. That places them at a clear disadvantage with regard to their competitors, and it is on the anti-competitive aspect of the legislation that we wish to hear a response from the Minister.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

I speak as someone who comes from a printing family and who has a major commercial printer in his constituency. I have no idea what view it will take of the matter, but it prints a large number of glossy magazines in high volumes—many famous titles. The Minister should make it clear that it will not be placed at a competitive disadvantage if it is requested to tender for a magazine that is based on the other side of the English channel, but has a small sale in the UK. We all know many such titles.

It is important that the Minister makes it clear that the proposal in clause 4(1)(c), and the related definition in clause 2, will not put a printing company at a serious disadvantage when it tenders for international print contracts.

The Bill contains a definition of ``advertisement'', but what constitutes an advertisement in the context of airlines? Does a simple listing on a page of the prices of Marlboro, Silk Cut and Rothmans without any picture of the pack constitute an advertisement? People try to make their in-flight magazines attractive, so there would normally be a picture of the product with a price alongside. Would a picture of the pack be regarded as information or an advertisement? If one accompanied the listings with images—for example, the image of a cowboy to illustrate Marlboro—that would become an advertisement. Will the poor old cabin crews at Birmingham international airport spend all their time explaining to people aboard international flights exactly what cigarettes they can and cannot buy?

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

The Minister may take the prize for the most unintended consequences in any Bill, and we are on only clause 4.

One weekend, I had the great good fortune to go to the Channel Islands to re-flag Condor Ferries to the United Kingdom flag. That was a great honour, especially as we all hear about shipping that flags out in the other direction. The change in safety regulations meant that Condor Ferries re-flagged its vessels in the UK. Tobacco sales are a massive business for airlines. If they want to get round the problems and stay more or less within the Civil Aviation Authority, they can base themselves in the Channel Islands or the Isle of Man. One of the unintended consequences of the Bill may be companies such as, say, Virgin Atlantic-Channel Islands. I suspect that tax would be another advantage of flagging out.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

The hon. Gentleman asserts that the sales of cigarettes on aircraft are massive. Does he have any figures for sales or profit margins? I think that they would both be significantly less than he suggests for UK-based airlines.

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

I am sorry that I gave way to the hon. Gentleman. He is clearly such a little Englander that he has never been on an aircraft—he has never tried to get his case into the overhead locker while all the cigarettes and whisky are falling out. I hope that he will get out more. My hon. Friend the Member for Meriden said how much the airlines were stressing their duty-free sales. Such sales have only been abolished within the European Union.

I suggested that the hon. Member for North-West Leicestershire (Mr. Taylor) did not get out much. If he did, he would know that if he tried to shove a book into that pocket in front of the seat on the plane, he would not be able to because it would be stuffed full of magazines advertising products. Perhaps we could provide some videos of aircraft for him, as he has not had a chance to travel under the new Labour Government. I thought that the Whips always wanted to send people away on overseas visits.

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

I do not. I am sorry. I came back from meeting our troops in Kosovo via the Royal Air Force, which will no doubt end up being prosecuted, on an airline that carried all the magazines and so on. The flight was actually run by Airtours. I did not know that I was to serve on this Committee until Saturday, so I am afraid that I have not had a chance to find detailed information.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset 3:45, 1 February 2001

I ought to make some progress. We are trying not to delay the Government's programme, but to ensure good legislation. I represent Weymouth and am next door to Poole. Also, many companies are now using Portland as a port. All of them sell cigarettes. They do not necessarily have what could be described as a shop; certainly an airline cannot have a shop. How will they be affected? Most companies produce brochures advertising such offers as that produced by Condor Ferries, which invited people to travel to Guernsey with a reasonably priced ticket that included 200 cigarettes and a bottle of whisky. Those offers can be found in travel brochures and other such publications. One of the purposes of encouraging people to go on day trips is that they can buy low-cost cigarettes and whisky.

It is extraordinary that an international airline cannot comply with the law if its head office happens to be in the United Kingdom. It will therefore be at a competitive disadvantage compared with those airlines that carry the products to and fro. If several subsections are needed to deal with the problem, how can the Minister claim that it is not an important matter? Surely, the sensible thing would be to say that an aircraft is a flying tobacconist. To ban point-of-sale information, including in the in-flight magazine, is nonsensical. It is a place where people buy tobacco. If it were treated as a shop, we would not have to go into such detail. If American Airlines say to a United Kingdom printer, ``I understand that your printing prices are much better than we can get out in the States. Would you like to print one of my in-flight magazines?'', he would have to say, ``I am sorry, I can't do that.'' I hope that the Minister can give us some good news.

Photo of Kevin Barron Kevin Barron Labour, Rother Valley

The obvious fact about airlines based in this country is that they come within our jurisdiction because they are based here. What confuses me about amendment No. 23, which is about airlines, is that on Second reading and at earlier sittings of the Committee, Opposition Members claimed to be concerned about smuggling and consumption. Although I accept that trade on airlines is not smuggling—we have to accept that it is legal—it is attractive because of the cost. Smuggling happens for exactly the same reason. Tobacco that is smuggled into the country can be purchased for a lower cost because the taxation imposed by the Treasury for public health reasons does not need to be paid.

The Opposition complained on Second reading about smuggling and the resulting low price of cigarettes and tobacco and the consequent increase in consumption. In Committee, they are in favour of advertising cigarettes at lower prices than one has to pay on the mainland. That is confusing.

Let me give Opposition Members some more information. I quote the Health Select Committee's unanimous second report ``The Tobacco Industry and the Health Risks of Smoking''. It mentions what advertising agencies do in this country and elsewhere. The section of the report entitled ``Measures to restrict marketing'' includes a brief explanation of the voluntary code that the hon. Member for South Dorset said was a good idea.

The report says that although the Advertising Standards Authority is the final arbiter on advertising tobacco products in this country, under the voluntary code, an organisation called the Committee of Advertising Practice operates the pre-clearance procedures for cigarette advertisements. That is all within the voluntary code. The report of the Health Committee states at paragraph 82:

``Musto, Merriman, Herring & Levi, in a creative brief from 1998 noted that `CAP's rules and regulations considerably restrict what we can do in the UK...But CAP rules don't apply outside the UK. There are some very good media opportunities targeting UK consumers abroad—particularly aimed at holiday charter flight traffic.''

That was one of the findings of the Committee. This is an area where they can even get around the voluntary code that Opposition Members have been defending in this Committee. Under those circumstances, perhaps they ought to withdraw the two amendments that relate to airlines. One day, I hope they may join us in supporting a call for international action on the advertising of tobacco products on airlines throughout the world.

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

Amendment No. 22 replaces ``printed'' with ``published''. As it stands, the amendment does not make sense, because if a publication is not published in the UK there is no offence. If UK firms print material for items that are never published in this country, even if they include tobacco advertisements, they are not guilty of an offence in this country under the terms of the Bill in clause 2(2).

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

I want to be clear. The Minister is dealing with an important point that I made. She is saying that if the publication is primarily intended for a foreign market and is printed in the United Kingdom, no offence is committed. Can we be absolutely clear on that?

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

No. Let me clarify. If the publication is not published in the UK at all, then there is no offence. So the amendment as drafted does not make sense because it replaces ``printed'' with ``published'' and it would read:

``if it is contained in a publication...which is published outside the United Kingdom''.

If it is not published in the UK, there is no offence.

I recognise the Opposition's argument that the drafting, as it stands, would cover UK firms that print material for publication that is primarily for a foreign market—the principal market is foreign and they are legally distributed here. UK firms, therefore, printing material for publication for a foreign market but that are legally distributed here, under clause 4(1)(c) will also be covered and will be guilty of an offence.

I have some sympathy for the arguments put forward by hon. Members on this issue and I will consider the matter further, although I am unable to accept the amendment as drafted since it would not make sense in the context of this Bill.

Amendment No. 23 and consequential amendment No. 21 would include all in-flight magazines on principle in an exemption and in a defence against this Bill. The fundamental point is whether some UK companies should not be subject to UK law as a matter of principle. The idea that the revenue from tobacco advertising is a significant issue for UK airlines is not plausible.

I recognise that there is an issue with tobacco sales and airlines do sell cigarettes. As with other businesses, they will want to tell customers what they sell. We will certainly listen to representations from the airlines when it comes to setting out the regulations on advertisements at point of sale. There is legitimate information that all cigarette sellers will want to convey about price and the products for sale.

We do not accept that there should be a blanket exemption for all UK airlines and for their publications and in-flight magazines for all forms of tobacco advertising, although we will listen to representations.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

I accept that this is about paid-for advertising: full page adverts that carry the Surgeon General's warning or that of the Department of Health. However, the issue is when the airline portrays the product in its price list. I hope that that is the issue to which the Minister is referring when she says that she will be open to representations.

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

That is certainly the issue on which we will be open to representations. We have said that, by putting in clause 4(2) that we would set out regulations on advertising at point of sale, we recognise that sellers will want to inform customers about their products. That is why we will set that out in detail in regulations, consult on the regulations and listen to representations.

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

The Minister is in a helpful mood at the moment. Would she also say something about ferries? The ownership of both ferry companies and individual ferries changes constantly. The system should make it clear that they can advertise the products that they are selling at point of sale.

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

To the extent that ferries sell cigarettes and tobacco products, they will also be covered by the point of sale regulations to which clause 4(2) refers. We shall certainly listen to representations, but it would be wrong to give ferry companies a blanket exemption to have whatever advertising they want, in any form, on ferries. We recognise that there are issues in relation to point of sale, which we have dealt with in regulations, but our broad intention is to ban tobacco advertising and we do not want to accept such exemptions.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

The Minister's response was satisfactory. We have heard that the Government will deal sympathetically with UK-based printers who may find themselves in difficulties, that, under the regulations, following representations and consultation, a compromise will be found for airlines on indicating the value of the products, and that a level playing field will be created for ferries. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 17, in page 2, line 26, leave out subsection (2) and insert—

`(2) The appropriate Minister may provide in regulations that no offence is committed under section 2 in relation to a tobacco advertisement which—

(a) is in a place or on a website where tobacco products are offered for sale, and

(b) complies with requirements specified in the regulations.

(2A) The regulations may, in particular, provide for the meaning of ''place'' in subsection (2)(a).'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

With this it will be convenient to take the following amendments: No. 24, in page 2, line 26, leave out 'display or'.

No. 25, in page 2, line 28, leave out

`by the appropriate Minister in regulations' and insert `by the Secretary of State in regulations under this Act.'.

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

The purpose of the amendment is to clarify the Bill. First, it adds to the Bill the power to determine in regulations the meaning of place of sale. We have accepted that there are reasons for permitting a certain amount of advertising at point of sale to communicate price or the products on sale. However, that should be subject to regulations. We want to make it clear that regulations can define what is meant by the place in which the goods are sold, to prevent the place being extended and abused and becoming a loophole. For example, supermarkets sell cigarettes. The regulations will permit and regulate advertising in the area of the supermarket in which cigarettes are sold. It would be unacceptable for the place of sale to be interpreted as meaning the entire shop, because advertising—which might be permitted on the gantry by regulations—might then be extended to cover shelves where, for example, tins of soup or baby milk might be for sale.

The amendment also excludes the word ``display'' and is, therefore, in line with amendment No. 24. Until the hon. Member for Meriden speaks on amendment No. 24, however, it will not be clear whether we have similar reasons for the proposal. The Government's reason is clarity and certainty. Rather than attempting to deal with display and advertising issues together, it would provide greater clarity to separate the two and introduce new provisions to deal with display. Those provisions will be available for consideration later in Committee.

Clearly, this is not the most straightforward of areas, as there is an overlap between what constitutes display of products and what constitutes an advertisement. The Government do not intend to change the broad status quo on the display of tobacco products for sale. We have no intention of unnecessarily increasing the burdens on small businesses, nor do we expect to change the way in which tobacco products are commonly displayed on gantries in corner shops, supermarkets and ordinary places of sale. It is legal to sell tobacco products and it is acceptable that vendors should be able to display their wares for sale. However, we want to prevent future loopholes and abuses. For example, we would not want tobacco companies to promote huge displays of their products in a high street window or among a display of children's toys. We would be concerned about products being scattered over aspirational items, such as Formula 1 motor cars, or fashionable items such as the micro scooters that children and teenagers are using at the moment. For that reason, we would oppose amendment No. 24 without a new clause being introduced, which is what we intend to do. It would be wrong to have no means of controlling and regulating the display of tobacco products.

We will table further provisions on the issue, so that we can distinguish between the legitimate displays that take place as part of the status quo and promotional displays the purpose of which is clearly to encourage people to take up smoking, and to make it difficult for those who wish to give up.

The purpose of amendment No. 25 is to have regulations made by the Minister in Westminster rather than the Scottish Minister. That is a matter for the Scottish Parliament. Although Wales and Northern Ireland will be dealt with by Westminster regulations, Scotland should make its own decisions on the matter. That does not necessarily mean that there will be different regulations in Scotland from those in the rest of the United Kingdom, because we have had considerable co-operation on the issue so far. The Sewel motion was strongly supported in the Scottish Parliament, even by Opposition Members' colleagues in the Scottish Conservative party. There would be difficulties if we have different regulations to deal with the issue on the internet. For that reason, we will consult our Scottish colleagues in detail. The bottom line is that, because of devolution, Scotland should make its own decisions. For that reason, we support Government amendment No. 17, but reject amendments Nos. 24 and 25.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I confess to a little distraction. I am not sure what is happening, but I was expecting a vote at 4 o'clock.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I thank the hon. Lady for her guidance. The Government Whip has been most helpful.

It has been helpful to listen to the Minister on the subject of the Government amendment. There is not a cigarette paper—if I can use that pun—between us on the issue. I knew that I would get the chance to use it at some point in the Committee. We tabled our amendments to find out from the Government about what we thought was a potential area of weakness. In moving the Government amendment, the Minister encapsulated what we were trying to achieve. We had entirely the same objective, which was to clarify the matter. Amendment No. 24 deals with precisely that problem. Those who are going to operate under the Bill need to know what a display is.

We have discussed the new constraints under which airlines operate.

Sitting suspended for a Division in the House.

On resuming:—

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health) 4:30, 1 February 2001

I was in the throes of saying that it is important that we define what we mean by ``display''. In a previous debate we discussed the existing channels by which an airline might communicate information about tobacco products that are sold to passengers. If, after the change is introduced, airlines have to resort to using a display as a way of conveying information, they would need to know what displays are. That applies not only to airlines but across the board—from specialist tobacconists to supermarkets—so the clarification of what is a display will become important. I understand the Government's intent in trying to make that clearer.

The purpose of our amendment was to probe the Government on what they mean by ``display''. The Government amendment clarifies what is meant by ``place'', which is important in exactly the same way. Everybody who will be affected by the Bill should be clear about what the Government intend.

My only general concern about that route of clarification is addressed by amendment No. 25. I remain uneasy about relying on regulations alone, and about the fact that the Committee cannot discuss as many examples as it might, given the shortage of time. In relation to the procedure for clarification, it may be restrictive on those who have to implement the Bill if the courts will ultimately decide what is an advertisement or a display. If we do not make it clear what we mean by those terms, we run the risk of forcing innocent people to go to court and confront criminal charges in order to determine the nature of the regulations. That is why it is important to draw out of the Government exactly what is meant. We failed to do so clearly in relation to the meaning of ``advertisement''.

Our amendment draws attention to the problem of ``display'' not being fully defined. We are trying to emphasise to the Government that saying that regulations will clarify matters is not the complete answer to the problem. Many people will have to work with concepts that are not properly defined in the Bill. I accept, however, that the Government amendment was intended to provide clarification of the meaning of ``place''.

There is only one other aspect of the Government amendment that gives me cause for concern. Given our long and detailed debate on clause 2 in relation to internet service providers, I am concerned that it might create the kind of massive loophole to which the Minister referred as a reason why she was rejecting an Opposition amendment. I believe in giving credit where it is due, and it was my hon. Friend the Member for South Dorset, who has a great interest in internet matters, who drew my attention to the possibility of a problem in the Government amendment. It is therefore fair to give him the opportunity to explain it to the Minister, because I am sure that he will do so far better than I would.

Photo of John McFall John McFall Labour/Co-operative, Dumbarton

I support Government amendment No. 17 and oppose amendment No. 25. The Opposition want to strike out

``by the appropriate Minister in regulations'' and insert ``the Secretary of State'', because they think that it is not important to recognise the effects of devolution.

Particular circumstances apply in Scotland that do not apply elsewhere. As the Minister said, that has been recognised by what is known as the Sewel amendment, which was proposed in the other place. The Sewel amendment is a simple undertaking that legislation will be undertaken here only with the permission of the devolved Assemblies. The Minister for Environment, Sport and Culture in the Scottish Parliament, the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith), described it on Second Reading as

``a splendid, courteous and decent way to deal with such matters''—[Official Report, 22 January 2001; Vol. 361, c. 679.]

I agree. The co-operative spirit of devolution must be maintained.

I recognise that it is sensible to leave some matters, such as stem cell research, to Westminster, but discussion must precede that to achieve a satisfactory outcome. As we know, advertising does not respect boundaries. Scotland has advertising near schools, in many cases in deprived areas. It is important for the devolved Assemblies to be able to undertake fine tuning in such matters. I have an interest as a former schoolteacher who knows the pernicious effects of smoking on young people, many of whom take it up at an early age. One of my duties, especially when I was in charge of guidance in a secondary school in Glasgow in the early 1980s, was to ensure that at interval time and lunch time we minimised smoking by young people. Billboards and adverts make them believe that smoking is a good thing for them to do, and, sadly, in today's society, many young females smoke.

Statistics vary throughout the country, which is why it is important to place the matter in a Scottish context. In Scotland, 10,000 people die a year—1 million in the United Kingdom—because of the effects of smoking. That has a big effect on the budget of the Scottish Parliament and it is important to refine that budget according to the priorities that we identify. I want the Scottish Parliament, working with the Westminster Government, to ensure that we have appropriate UK policies and that we tackle the pernicious effects of smoking.

On Government amendment No. 17—

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

The hon. Gentleman has introduced the devolved aspect, which is a factor that I had not considered in relation to the Bill. As he will have heard me say, I thought that it was a DTI Bill, not a health Bill. Health is a devolved matter. According to his interpretation, when the Bill is enacted in this place will it mandate the Scottish Parliament to have the same laws?

Photo of John McFall John McFall Labour/Co-operative, Dumbarton

It is good that the hon. Gentleman was in Kosovo doing such good work. He should read the Second Reading debate, when the matter was explained clearly. I repeat, for his sake, that the Sewel amendment proposed a convention whereby the devolved Assemblies deal with legislation. If they agree with the Westminster Government, legislation can be passed—which is a splendid arrangement, as the hon. Member for Strathkelvin and Bearsden said. I am sure that, if the hon. Member for South Dorset wishes, the Minister will provide a private tutorial for him so that next time he is up to date.

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

It was a genuine inquiry. I am glad to hear that, despite the fact that it does not say so on the Bill, the legislation applies to the whole of the United Kingdom. That is sensible.

I wish to speak to Government amendment No. 17. The Committee is in a strange position. The proceedings are happening in a matter of a few days. We discussed the Bill on Second Reading, and then the Minister has tabled amendments in Committee, which I understand that I cannot amend. I did not see amendment No. 17 early enough to table an amendment to it that you might have selected, Mr. Malins.

The Minister has tried to be helpful, and has, no doubt, listened to some advice and tried to come forward with a new amendment, but it is defective. On the one hand, the defects can be overcome because the Government are using a device whereby they do not tell us for certain what the regulations will say. They reserve the right to make up the regulations as they go along. In some ways, they can do that. The hon. Member for Rother Valley is nodding his head as though that is a good idea, but I know that he wants the regulations to be watertight, and wants to ensure that his Ministers manage that.

I direct colleagues to the word ``website'' and how the regulations will deal with a website in which tobacco is offered for sale. My understanding of a website is that or BT Internet could be one. The Conservative party could be a website. What is interesting about websites is that, by the nature of the world wide web, every web page is connected to every other web page throughout the world. What the Government are rightly trying to do is to deal with web pages that direct people to a website with advertisements for tobacco, displaying the price and so on. Any web page can effectively direct people to a site where they can purchase tobacco. It may be completely unrelated to tobacco. Someone may have asked about football, and the site will contain a little logo, with the appropriate regulations about how much information is allowed to be given, and that will direct people to the best deals on tobacco. I do not think that the Government want that to happen, but it is happening.

The Minister talks about websites, but she excludes e-mails, which are not the same thing as websites. We all receive e-mail on our computers, and read information sent to us. Those e-mails may be wholly legal by nature of the fact that someone has asked for information and it has been sent, but as everyone knows, when they log on in the morning, they find that hundreds of advertisements have been sent because a global address list is available. I do not know how many address lists are now available that feature Members of Parliament and their secretaries and anyone with anything to do with Parliament. It takes just one click of a button and we are all sent the same e-mail. How will the Government deal with that when they have defined the term ``website'' so narrowly? If people are interested in purchasing tobacco and get into the address where it is sold, it is ridiculous to say that the web page cannot advertise the product. The Minister needs to look at such matters extremely carefully.

I wish to cite a couple of examples. When there was a Conservative Government, I went to the Home Office to talk about the Computer Misuse Act 1990, which was often known as the anti-hacking Act. Those who wrote the legislation had not a clue about the nature of what they were writing about. I hate to say that, because we have some skilful draftsman here and the internet is something that people understand a great deal more about now, but the definition under the Bill will make it difficult for the Government to make regulations.

I have introduced only one private Member's Bill. It was the Telecommunications (Fraud) Act 1977. We could not find an all-encompassing description of the wire or device, so it is described as a ``thing'' throughout the Act. That was the only way in which to ensure that the measure was technology proof. We must stop people finding a route to enable them to say, ``I can advertise, because I have used the appropriate criteria.'' Someone said to me, ``I'll tell you how to get billboards back in the United Kingdom. You publish them on the website, and project images on a huge screen by the roadside.'' That is a way around the regulations that the Government are attempting to introduce.

The Government are saying that they do not want published on an individual's computer an advertisement for tobacco without that person having said, ``I want to read about where I can buy tobacco.'' We must tackle the problem of people knowing how to click on the URL for a certain address in a lawful way when, in effect, clicking on the box labelled ``tobacco'' is illegal. That must be dealt with.

Photo of Kevin Barron Kevin Barron Labour, Rother Valley 4:45, 1 February 2001

Given that electronic screens could replace billboards now, does the hon. Gentleman agree that it is sensible that the Government have the power to introduce regulations to cover such matters where people would try to promote the use of tobacco?

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

I do not disagree with the hon. Gentleman's point.

Photo of Kevin Barron Kevin Barron Labour, Rother Valley

So why are you criticising the regulations?

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

I shall leave you, Mr. Malins, to deal with the hon. Gentleman. It is not my place to call him to order, and I shall not respond to his intervention.

One could say inadvertently, ``Here is a legal route by which an advertisement can be displayed''. Regulations may state that it can be displayed on an individual's computer, and regulate the way in which someone obtains the information from the computer. That would be similar to a point-of-sale system. The Government are saying that, instead of going to a shop to buy cigarettes, people could purchase them from the internet. We have not had a chance to amend the new subsection in the Minister's amendment. Will she please reconsider it in the light of my remarks?

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

To answer the hon. Gentleman, it is not unusual for the Government to table amendments in Committee. It often happens. His understanding of the Government's intention differs from mine, so I will clarify it. E-mails containing advertisements and sent in the course of business—whether or not those advertisements are also on a website—are electronic communications and will be covered by the Bill. E-mails sent by individuals, but not in the course of a business, will not be covered by the Bill. A particular e-mail is not a ``place'' or a website where products are sold. E-mails would not be exempted, subject to regulations, under clause 17, and clearly are covered by the Bill.

The hon. Gentleman asks whether a website could be displayed on a massive computer screen where there used to be a billboard. Someone owns the computer screen and has paid for it to replace the billboard. That is publishing by electronic means in this country, and will be subject to this Bill. If it were not possible to prosecute the original person who had drawn up the website—for instance, if that person was in a foreign country—the person who owned the computer screen would, none the less, be publishing it for people driving past in their cars, and would therefore be liable for prosecution under the Bill.

To answer the hon. Gentleman's question about links between websites, clause 4(2) clearly states that the advertisement has to be on a website and not on some faraway link to that website. Regulations will clarify that. The internet is a complex area and that is why we will consult on the regulations. I do not accept, as the hon. Member for South Dorset says, that there are huge loopholes or problems in the amendment.

I support the points made by my hon. Friend the Member for Dumbarton (Mr. McFall). It is right for Scotland to make its own decisions. The level of support for the Sewel motion demonstrates the enthusiasm for working together on this issue from both Westminster and the Scottish Parliament.

Amendment agreed to.

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

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

Some important points have been made, but I wish to re-emphasise to the Government that an increasing number of matters are being left to regulations. In my short time in Parliament, I have discussed a sufficient number of Bills in Committee to know that that creates considerable disquiet in those who have to work with the Bill. Too much room is left for interpretation after the event, which results in an empty-box type of legislation. Only the framework is created, but in terms of the tools that people have subsequently to work with, it is what is inside the box that is important.

A number of terms could have been more clearly defined in the Bill. I accept that the Government are trying to do so by helping to clarify the definition of a ``place'', but that could have been extended to other terms. The general weakness of the clause is that much of it will be left to regulations. There is still a fundamental lack—there is no definition of an advertisement. There have been some helpful examples, but the whole of the Committee's time cannot be spent going through examples as a way of having on the record in Hansard clear guidance for those who have to work with it. That is my anxiety about clause 4.

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

We have already had an extensive debate on many of the issues around clause 4, which sets out some of the exemptions under the Bill. Clearly, it is not the Government's intention to prevent those legally selling tobacco products within the tobacco trade from going about their business under subsection (1)(a). Nor is it our intention to allow a huge loophole for direct marketing under subsection 1(b). Under subsections (1)(c) and (1)(d) we recognise, in particular, the issues regarding foreign publications and in-flight magazines. Subsection (2) sets out the need for regulations on point-of-sale advertising and it is right that we consult on that in detail. Subsection (3) is purely a definition.

Question put and agreed to.

Clause 4, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—(Mrs McGuire.)

Adjourned accordingly at four minutes to Five o'clock till Tuesday 6 February at half-past Ten o'clock.