Clause 1 - Meaning of ''tobacco advertisement'' and ''tobacco product''

Tobacco Advertising and Promotion Bill [Lords] – in a Public Bill Committee at 5:00 pm on 7 May 2002.

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Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 5:00, 7 May 2002

I beg to move amendment No. 1, in page 1, line 5, after 'so', insert

'provided that—

(i) no tobacco product itself;

(ii) no packaging of a tobacco product;

(iii) no invoices, letterheads, price lists and other stationery ordinarily used in the course of a business to identify that business;

(iv) no inscriptions, marks or signs exhibited on premises ordinarily used in the course of business to identify that business;

shall be a tobacco advertisement,'.

This is a not an unfamiliar subject, but we have tabled the amendments in the interests of being helpful and making the Bill clearer. The amendment would add various definitions of what should not be seen to constitute an advertisement and, as such, would be prohibited under the Bill.

I gather that when their Lordships dealt with this subject they concentrated largely on the ''Yellow Pages''. I shall not repeat what was said, but following the advice given on his visit to the Committee by the hon. Member for Oxford, West and Abingdon (Dr. Harris) that we can refer back to proceedings in another place, I ask hon. Members who have an interest in the ''Yellow Pages'' to look up the report of the Committee there.

We must justify the Bill in terms of proportionality, or it will simply be challenged in the courts. The aim of the amendment is achieve clarity for the enforcement officers and agencies or retailers of tobacco products, the manufacturers of tobacco products and the producers of packaging and other paraphernalia that go with selling and presenting tobacco products. We have heard on previous occasions that the Government want to keep the wording in the Bill vague so that people do not later take advantage of loopholes. The Government are happy for definitions

to be made in the courts. As I said earlier, that is a bad way to proceed. There must be much greater clarity in the Bill.

The ''Oxford English Dictionary'' definition of an advertisement is:

''a notice or announcement in a public medium promoting a product, service, or event or publicising a job vacancy.''

That is clear for posters, billboards and advertisements appearing in newspapers and magazines, but other aspects are open to question. In another House—just to show the hon. Member for Oxford, West and Abingdon who has disappeared again that we have considered the Lords' debates fully—Lord Filkin referred to a fast car advertisement, in which the driver, in order to persuade potential purchasers that it portrayed a luxurious lifestyle to which they would want to aspire, may be smoking a cigarette as he drives along, and it is clear that that product is part of the lifestyle that is being promoted. The advertisement is for the fast car. Does it apply to the cigarette or other tobacco product being smoked, chewed, inhaled or whatever else one does with a tobacco product in the advertisement?

In another House, Lord Filkin said:

''If such an advertisement is proved to have the effect of promoting a tobacco product, it is right that it should be caught by the e-ban. However, the onus would be on the prosecution to prove beyond doubt that the advertisement had that effect.—[Official Report, House of Lords, 16 November 2001; Vol. 628, c. 801-2.]

I should be interested to hear from the Minister how the prosecution would be able to prove beyond reasonable doubt that such an advertisement had the effect of promoting the tobacco product rather than the Ferrari, Porsche or whatever fast car it featured. Therefore, we want better definitions of what constitutes an advertisement.

Better definitions exist, and we need only look at previous legislation for examples. The Consumer Credit Act 1974 defines an advertisement as something that

''includes every form of advertising, whether in a publication, by television or radio, by display of notices, signs, labels, showcards or goods, by distribution of samples, circulars, catalogues, price lists or other material, by exhibition of pictures, models or films, or in any other way, and references to the publishing of advertisements shall be construed accordingly.''

That definition of 28 years ago is rather more helpful than the lack of a definition in the Bill, which could be subject to challenge. There is also a better definition in the Gaming Act 1968 and the Medicines Act 1968.

The amendment would state what should be obvious in the Bill but is not and would not be to an opportunist lawyer who wanted to mount a challenge in court on behalf of a client. The Bill will surely open up such a challenge. We want to exclude the tobacco product itself--for example, a cigarette--and the

''packaging of a tobacco product . . . invoices, letterheads, price lists and other stationery ordinarily used in the course of a business to identify that business . . . inscriptions, marks or signs exhibited on premises ordinarily used in the course of business to identify that business'' from constituting a tobacco advertisement.That is common sense and you and I, Mr. Amess, as sensible Members would accept that. I cannot see that the

terms of the Bill and its penalties would be diluted by defining closely what the advertisement should include.

I paid particular attention to the tobacco counter at Safeway in Worthing last week. Some of the packaging that bundled the 200 Super Kings and some of the display shelf could constitute an advertisement and a challenge could be mounted along those lines when, patently, they are not intended as such.

What will happen to the existing restrictions under the voluntary agreement when the Bill is enacted, if it is passed by the House? What will be able to be portrayed on packets of cigarettes--they must include the Government health warning--and the packaging? How prominent will the Government health warning have to be? I for one want an even more prominent health warning.

What about invoices and letterheads that are used as a legitimate part of the business of tobacco retailers and those involved in mail order retailing of tobacco products? If they replicate the appearance of cigarette packets or packaging, they could constitute an advertisement, although they are patently not intended to do so if they are used in the normal conduct of business. There could be problems with signs on premises and we shall discuss that later when the Minister gives us more details, but some of the signs replicate what the packet looks like.

A question also arises about the vehicles that deliver these foul objects. They often have signs on the sides stating what the brand is and that may be taken as constituting an advert. A Marlboro delivery van could state on the back, ''Marlboro--How am I driving? Ring 0800'' and so on. Would that constitute an advertisement? Such matters should be more closely defined.

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds 5:15, 7 May 2002

Would my hon. Friend care to speculate on why the Government chose a wide definition instead of going for something like the definition in the Consumer Credit Act 1974?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

My hon. Friend asks a fair question. In the past, it has been suggested that the Government have refrained from drawing a tight definition because they believe that doing so would create loopholes that clever lawyers could exploit. A stronger case, which I am trying to make, is that not giving definitions would make many more potential loopholes that clever lawyers, of whom there are many—expensive ones at that—should want to take to court. It is not a legitimate business of Government to leave the matter to the courts, as the Government appear to want to do, by not defining more closely in the Bill exactly what is or is not allowed.

The amendment is helpful. It is a good base from which we can define what is and is not allowed, what the penalties should be and what exemptions should apply to certain types of business or products. I hope that the Minister will accept it in the way in which it is

intended, which is to be helpful and get us to a much better defined Bill. Whether or not we agree it, everybody will know exactly where they stand.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

Before I make my first contribution to the debate, I draw the Committee's attention to the Register of Members' Interests, in which members will find no entry against my name in respect of tobacco. It is important to make it clear that if I go out of the Room from time to time, it is not to have a quick puff in the Corridor. On the other hand, I also draw the Committee's attention to the fact that I allowed the pro-tobacco lobby to buy me lunch, and I mention that in case the anti-tobacco lobby would like to take me out to lunch. I make that point because if I can be bought for a lunch I am not worth buying. Nevertheless, it is important that the Committee knows my interests, or lack of them.

My hon. Friend the Member for Basingstoke (Mr. Hunter) said that your presence would raise the quality of the debate, Mr. Amess. After you have heard one or two of my contributions you will know that achieving that will not be difficult.

My hon. Friend the Member for East Worthing and Shoreham said that this is an issue with which certain people are familiar. Well, I am not familiar with it. I was not present when it was discussed in the House of Lords and I was not present in any Committee sitting in the last Parliament in which it was discussed. I therefore make no apology for letting the Committee know that when there are votes I intend to cast my vote on the arguments that I hear in Committee, and not on the basis of what somebody might have said a long time ago, which is an approach that demeans democracy. If Liberal Democrat Members are prepared to say that it is does not really matter whether we discuss the issue now because it has been discussed before, that is their problem. They may not want to consider the Bill properly, but I do.

The amendment goes to the heart of what is an advertisement. If we are going to pass legislation that says that advertisements are not permissible, we owe it to our constituents to make it absolutely clear what we mean by an advertisement. It is not true to suggest that an all-embracing definition will be adequate to close loopholes and it flies in the face of common sense not to quantify the generalised statement in the Bill. When we scrutinise the Bill, we have to apply common sense rather then letting the lawyers run amok on our behalf. Sooner or later, the issue is going to end up in the courts. In scrutinising the Bill, it will be important to make sure that it is as clear as possible and that we anticipate legal challenges that may be mounted, which will stop us putting endless amounts of money into lawyers' pockets. To allow the Committee to know where I am coming from, my son is a barrister and I am speaking against the family interest when I say that we should make sure that we do not give lawyers work when we can avoid doing so. It is important that we go down this route with carefully scrutiny of what we mean when we refer to an ''advert.''

I accept the first part of the clause, which states that an advert is when the purpose is to advertise tobacco. That is fine. Whatever the ''Oxford English Dictionary'', clever lawyers or Committee members may say, I have no difficulty with somebody doing something with an intent to sell or promote if I can see that it is an advert; I am content that the advert should be there and it will be for lawyers to prove purpose and intent. There will be a defence in law for a person to claim that he or she did not intend to do it and that it is not their fault. That might be a loophole, but I am not a lawyer.

What is wrong is that the clause refers to something that happens or that is produced that has the ''effect'' of promoting tobacco. That wording is not adequate and it will be challenged time and again. Let us take what may seem like a trivial example. My understanding of cigarettes is that the brand name is often printed on the paper. It would be perfectly possible to argue that the reason why one buys cigarette A over cigarette B is because of the smell and that putting a name on it may be trying to promote it.

I should like to hear what the Minister has to say about packaging, and not only that of the cigarette, although the cigarette paper is in a sense packaging rather than a tobacco product. The amendment refers to ''no tobacco product itself''. We could have a long argument over whether just the tobacco, or the tobacco plus the immediate wrapper, constituted the tobacco product. If we are not careful, lawyers will get stuck into that question in court.

The box into which the product goes is clearly going to cause problems. I get the impression that in supermarkets in particular cigarettes are put so far out of the way of shoplifters that one must ask for them—I would not know because I do not buy the things. Supermarkets could have shelves full of white boxes with nothing on them. When one travels with airlines and visits duty free shops, there is an opportunity to take from the shelf, put in the basket and take to the till. It would be crazy for those shops to have rows and rows of 200 packs in white boxes because of legislation. How will a person know what they are taking off the shelf?

The amendment is necessary common sense for people who, without any persuasion from the advertising industry, decide that they want to buy cigarettes, cigars, tobacco or whatever. There must be some means of identification, particularly for self-service. For such packaging to be caught as an advertisement by the legislation is wrong. The Government should not leave the issue to a nudge and a wink, or say that they will not bother with it because it can be left to common sense. We must set it down to achieve some sort of clarity.

The amendment refers to

''invoices, letterheads, price lists and other stationery ordinarily used in the course of a business to identify that business''.

The argument behind the clause is that one cannot exempt even invoices. Were I a tobacco wholesaler sending out invoices, it would do little good to send you a piece of paper, Mr. Amess, that stated that you owed me £5,000 for cigarettes if I could not state the

company's name on it. How would you know to whom to send the cheque? Again, common sense must apply to such matters. The amendment mentions

''inscriptions, marks or signs exhibited on premises''.

Are we assuming that all smokers are psychic and that I could wander down the high street and just say, ''Ah, I can buy cigarettes in there''? According to the Government, anything put on the outside of a shop could be deemed to be an advertisement under the clause. For all those reasons, the amendment would not undermine what the Government seek to achieve.

We debated on Second Reading the whole range of civil rights and human rights issues and people's ability to smoke and know what they are doing. You would rule me out of order, Mr. Amess, should I attempt to raise those again. However, even if we accept that the Government have a majority and will get their way with the Bill, whatever we might think of it, I still hope that the Minister will indicate a determination to apply common sense to such issues as the amendment raises, even in a Bill that I think is flawed in principle.

Photo of John Barrett John Barrett Liberal Democrat, Edinburgh West

Hon. Members who have spoken have raised various matters, but limited points have been made on clause 1. For example, the advertising of cigarettes in white boxes has been mentioned but, no doubt, a company could produce a cigarette entitled ''White Box'', so that large numbers of white boxes in any supermarket would be advertising. There has been constant reference to clever lawyers finding loopholes in the Bill, but clever lawyers will always find loopholes. On clause 1, the references to advertising exclusions deal with several of the issues raised. For example, displays are dealt with in the Bill.

I should like the Minister to respond to the part of the amendment that refers to

''no inscriptions . . . on premises ordinarily used in the course of business''.

That point needs addressing in relation to premises where cigarettes are manufactured. For example, if a large Benson and Hedges factory were plastered with very large signs, including some on the roof that aircraft could see, would that be promotion of the product? That is the only issue raised up until now that I think that the Minister need clarify.

Photo of Mr Andrew Hunter Mr Andrew Hunter Conservative, Basingstoke

I shall be brief as most of the salient points have been covered. I should like to emphasise that this is a very serious amendment. It gets to the heart of the Bill. There is an onus on the Government to offer an explanation that was denied in the other place and that was also denied during the passage of the previous Government Bill. Two previous Labour Governments and the previous Conservative Government, dealing with legislation on advertising, felt a responsibility—a sense that they were beholden—to offer a definition of advertising. Those respective Governments, starting with Harold Wilson's in 1968, going through to 1974 and on to the 1980s and early 1990s, did that because they accepted the principle that, the closer the definition, the fewer

the loopholes. This Bill, endorsed by the Government, has actually turned that principle on its head, arguing that to define would be to create loopholes.

I approach this debate with an open mind, but I am dumbfounded, in the absence of an argument from the Government, at the idea that a lack of definition can ever result in fewer loopholes. It seems to defy logic to argue that.

If we look at the 1974 Act, mentioned by my hon. Friend the Member for East Worthing and Shoreham, the Gaming Act 1968, the Medicines Act 1968, the Insurance Companies Act 1982, the Financial Services Act 1986 and the Food Safety Act 1990, we find that successive Governments considered that a definition of advertising would reduce the likelihood of loopholes, not create them. I hope that the Minister can demonstrate to the Committee why the experience of the best part of a little more than 30 years should now be overturned and why we should accept that a lack of definition is in the interests of the enforcement of the Bill.

I understand the concept of direct tobacco advertisements and the Committee will not have problems with posters, billboards, press advertising and so on. That is the direct promotion of a particular brand. In the other place, some consideration was given to what could be called indirect advertising—an advertisement that has the purpose or effect of promoting a tobacco product, when it is ostensibly for another product. On behalf of the Government in another place, Lord Filkin chose as an example

an advertisement for something else—perhaps a fast car in which the driver is seen smoking an identifiable brand of cigarette as he puts his foot on the accelerator.—[Official Report, House of Lords, 16 November 2001; Vol. 628, c. 801.]

How on earth will the prosecution in a court of law be able to prove beyond reasonable doubt that such an advertisement had the effect of promoting the tobacco product rather than the car? I ask that because I genuinely do not know how that can be determined fairly or reasonably in a court. The clause is creating a paradise for lawyers because the issue of whether an advertisement is indirectly promoting a tobacco product will fill the coffers of many law companies. Is it really sensible to include in the Bill an open, undefined use of the term ''advertisement''? What is meant by an advertisement should be more tightly defined in the Bill.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health 5:30, 7 May 2002

Amendment No. 1 lists several items that would not be capable of being a tobacco advertisement if the amendment were accepted. If the meaning of advertisement were circumscribed as set out under the amendment, there would be a risk of creating gaps in the advertising ban—gaps that could be serious major loopholes. I therefore ask the Committee to reject the amendment.

''Advertisement'' in the Bill carries, in effect, its natural common-sense meaning. That is usual in the law and in the drafting of Bills. The understanding of advertisement is clear in many such cases. I shall run through some examples.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

The Minister says that the meaning of ''advertisement'' is a common-sense matter and it has a natural meaning. What does she consider to be the natural meaning?

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

Oppositions Members are keen to set out different forms of advertisement in the Bill. They say that that would make it clearer. Each time that they attempt to list forms of advertisement or themes that they do not describe as advertisements, they open the door for potential loopholes and ways in which the tobacco industry can get round the Bill. There is a serious point. It matters, because in plenty of other attempts to introduce Bills to control tobacco advertising, the bans have not been comprehensive and that has been a problem. Some of the research evidence suggests that that is the reason for some advertising bans being less effective than they could have been.

From the work done by the Health Select Committee, we know that the tobacco industry has already tried extensively to anticipate and find ways round potential bans and would do so again. It is therefore important that we introduce a comprehensive ban and then set out the exemptions.

Mr. Hunter rose—

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

I shall try to respond to some of the points made by hon. Members and I will be happy then to take as many interventions as necessary.

For example, the view of the Government is that a tobacco product itself does not constitute an advertisement, neither do cigarette packets presented in the familiar way with the logo or colour scheme of a particular brand. However, it is conceivable that packets could be arranged in a shop window in a particular way—for example, Marlboro cigarettes in the shape of a racing car—that would create an image that amounts to an advertisement and would be understood by people to be an advertisement.

On letterheads and the like, the Bill is not aimed at the mischief of companies promoting their businesses by printing their names on letterheads. We have made that clear both here and in the other place. Common sense would not allow that to be regarded as an advertisement. However, if a letterhead were spread over the entire page—complete with the Joe Camel picture—and it just happened to drop out of the pages of a Sunday colour supplement, most people would regard that as an advertisement and not as the company going about its ordinary business with its letterhead.

We do not consider inscriptions such as ''tobacconist'' on the outside of shops to be an advertisement and, in many cases, the name of a company on the side of a van may not be an advertisement for a tobacco product. There is a difference between, for example ''Philip Morris. How is my driving?'' on the back of the van for the driver behind to read it, and ''Marlboro. How is my driving?'' spoken by a massive cowboy, cigarette in hand, emblazoned across the side of the van. Most people would regard that as an advertisement and it is right that the Bill should prevent it. It would be completely

wrong to introduce a comprehensive tobacco advertisement ban and then say, ''Well, okay, it is all right if you want to put an advertisement on the side of your van, or have a massive advertisement on the front of your factory.'' To pick up the point that the hon. Member for Edinburgh, West (John Barrett) made, the issue would be whether or not the sign was what people would regard as a tobacco advertisement.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

The Minister is making an excellent job of arguing why the Bill should define that a ''tobacco advertisement'' is an advertisement

''whose purpose is to promote a tobacco product''.

That much I can go along with, but is she not overlooking ''whose effect''? Any letterhead could be held by a court to have the effect of creating a tobacco advertisement, even if that was not the purpose. The hon. Lady has not tackled that matter .

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

No. It is important that the Bill includes advertisements where the effect is to promote tobacco product. In the end, that is what we must take account of if we are trying to stop tobacco advertising and the promotion of products that kill.

Photo of Pete Wishart Pete Wishart Opposition Whip (Commons), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Transport)

Can the Minister explain how the advertisement for the ''Bacci Bus'' appeared in the Scottish edition of the Daily Mail? It offered cheap trips to buy cigarette products in European countries and bring them back. I assume that the Bill will not cover such an advertisement. Will the hon. Lady confirm whether that is the case?

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

I am happy to look at that advertisement and consider it in more detail before advising the hon. Gentleman.

The Bill's overall approach is clear—to introduce a comprehensive ban and specify possible defences against it. It is right that defences should be specified later in the Bill, but to ensure that we have the most comprehensive ban possible, it is also right to set it up in this way at the beginning of the Bill.

The amendment would create loopholes. Indeed, discussion of the amendment and its consequences makes my case for me. Trying to ignore the natural meaning of the word and list examples of advertisements and of locations of advertisements inevitably opens up the possibility of not including all possible locations, or locations that could be used as advertisements but may not be at the moment. This is a sensible attempt to introduce a comprehensive ban.

The hon. Member for East Worthing and Shoreham mentioned packaging, which is subject to the EU directive on labelling. The size of health warnings is subject to separate discussion at European level and to the implementation of regulations to cover those warnings, so there is no question that warnings on tobacco packets would be reduced.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The more the Minister went on and the more my hon. Friends intervened, the more I became convinced that it is perfectly legitimate and right to make the amendment, or a form of it, to the Bill. The Government are trying to leave an open,

undefined use of the word ''advertisement'' in the Bill, in order, in the Minister's own words, to try to close various loopholes.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I wonder whether my hon. Friend can help. I asked the Minister whether she could give us a definition of the natural meaning of the word ''advertisement''. As I did not receive an answer from her, I wonder whether he would try to come up with one, because we need to know what we are discussing.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

That is a challenge. I have already given some examples of what constitutes an advertisement as defined in previous legislation. It seemed perfectly acceptable for those terms of advertisement to be added to legislation in 1968 and 1976, in our examples, but apparently not here.

The Minister said that such definitions would merely create serious gaps. What are those gaps? She gave a retort to my example of a name on the side of a van. It is entirely a grey area when the name ''Marlboro'', in whatever colours it may be presented, becomes an advertisement if portrayed on the side of a van. She is leaving that enormous gap open. If such advertisements are no longer allowed in Formula 1 racing, racing drivers will no longer have their cars plastered with ''Marlboro'', as well as ''Vodafone'' and various other things that will be legitimate. However, nothing would seem to stop the driver having a handful of cigarettes in his hand, unhealthy occupation though that would seem for a Formula 1 racing driver. Whether that would be allowed is a grey area, even if the name appeared in big letters all the way down the side of the cigarette.

The Minister is opening the Bill up to challenge by lawyers in court.

Photo of Mr Andrew Hunter Mr Andrew Hunter Conservative, Basingstoke

My hon. Friend will have noticed that the Minister did not take up one of my points, which relates to paragraph (v) of the amendment

''no communication of words in print, orally or by any other means in the context in which an advertisement the purpose of which is not intended''.

The Minister did not refer to that. Does my hon. Friend agree—

Photo of Sir David Amess Sir David Amess Conservative, Southend West 5:45, 7 May 2002

Order. I am not aware of a paragraph (v) in the amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

My hon. Friend the Member for Basingstoke may be jumping ahead slightly, because the amendment that we are discussing goes up to (iv) in Roman numerals, and we should concentrate on those four things.

I turn to the other point that the Minister fails to address. She says that our amendment would merely open up serious gaps, and that clever lawyers could find loopholes. However, that ignores the fact that under the Henry VIII clause 7 alone—regardless of several other wide measures of regulation in the legislation—if such loopholes were to appear, the Secretary of State has powers to close many of them under regulations.

The Minister is not defining the gaps that she alleges would open up—which is a false allegation anyway, because we are trying to close the potential for those gaps to appear. She is also ignoring the fact that she—or her right hon. Friend the Secretary of State—has serious powers to change the regulations, particularly as defined under new forms of electronic communication, so that such problems could be addressed.

Therefore, the Government have not made a good enough case against our amendment on this first outing. It has been put forward as a genuine attempt to be helpful; it is a defining amendment, which is intended to make it clearer to all concerned what will and will not be allowed if this legislation is passed, without serious recourse to the courts and expensive legal bills—where loopholes will feed on loopholes, if the matters under discussion are not given greater definition in the Bill.

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

I thank the hon. Gentleman for giving way, as that saves me from having to respond to his point later, and thereby to take up more of the Committee's time. I simply wish to point out that clause 7 refers only to new technology and developments in new technology; it does not refer to the entire scope of the Bill.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

If that is so, I am surprised, given the enormous powers under regulation that this Bill and so many other Bills give to the Secretary of State, that the Minister is not seeking to solve the problem by extending those powers to amend regulations to other regulations outside electronic communications. She seems to have missed a trick that her colleagues in other Departments—and in her own Department—never fail to miss, with regard to other legislation that we are constantly bombarded with in this place that gives enormous and unprecedented power to Ministers. Therefore, she has not offered a convincing excuse. I am almost arguing against myself by offering the Minister yet further unprecedented powers, but I am sure that she would take them up with relish, as her colleagues have previously done, with regard to other legislation.

I offer a challenge to the Minister. I want her to give examples of the serious gaps that this harmless, well-intentioned and benign amendment will open up. The Bill has been under scrutiny for some time, and her officials have had it under scrutiny for rather longer than have myself and my hon. Friends, so they must have come up with a list of potential loopholes that might be exploited. They have had ample time to tighten up the legislation to ensure that they are not realistic loopholes.

As things stand, it is fraught with loopholes that will instantly be taken to the courts, at vast cost, and to the benefit of nobody except lawyers. All of that could be avoided by the amendment's addition of some closer definitions, the downside of which are limited. Therefore, I challenge the hon. Lady again to tell us exactly what are the gaps that she envisages, because although she keeps going on about them, she has not given any good examples.

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds

I wish to amplify to the Minister the point that my hon. Friend the Member for East Worthing and Shoreham has made. The hon. Lady genuinely believes that the current draft of the clause will provide a comprehensive coverage of advertisements, and we take that in good faith. Our amendment suggests that that is not the case, and it seeks to tighten up the legislation.

I listened carefully to the Minister, as is my wont; I have a great deal of time for her, because she is very well prepared. Given that, I ask her to justify one of the arguments that she adduced in her previous contribution, when she said that there were loopholes in specific definitions—or words to that effect. In light of what she said, will she tell the Committee what precedents there are—I am sure that her legal advisors will help her—of loopholes being found in Acts that have a spelled-out definition of ''advertisement''? Take the wording of the Consumer Credit Act 1974. That legislation is not, of course, on all fours with what the Bill is trying to achieve in respect of tobacco advertising, but a spelled-out, detailed definition is used in that Act.

I shall read the definition, which is quite long:

'''Advertisement' includes every form of advertising, whether in publication, by television or radio, by display of notices, signs, labels, showcards or goods, by distribution of samples, circulars, catalogues, price lists and any other material, by exhibition of pictures, models or films or in any other way, and references to the publishing of advertisements shall be construed accordingly''.

That is an example where the Government of the day decided specifically to spell out in almost mind-bending—nay, boring—detail, what an advertisement constitutes. I am advised by legal advisors that a definition that is substantially the same is to be found, as my hon. Friend the Member for East Worthing and Shoreham has highlighted, in the following Acts passed by Her Majesty's Governments: the Medicines Act 1968, the Insurance Companies Act 1982, the Financial Services Act 1986 and the Food Safety Act 1990.

I mention those Acts for a specific reason. If the Minister is correct, and if her argument is to hold water, she will be able to list from the Acts that give a spelled-out, long definition, examples in which a person or people acting in concert, or companies, got round that definition, and were able to create a loophole. I do not think that the Minister expects the Committee to accept willy-nilly, or on her say-so, that the definition that we are trying to put into the Bill through the amendment is not necessary.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I feel somewhat guilty pressing the Minister further, because it was she who, in the Programming Sub-Committee, offered us an extra 30 minutes. I should be grateful for that. I only hope that she did not wreck her chances of promotion by doing what the Government Whips did not want her to do.

The Minister nearly persuaded me that our amendment was not quite as perfect and well-honed as it should have been. However, she ultimately failed when I tried to press her on some points to which she did not respond. It is not adequate for the Minister to say that the word ''advertisement'' has a natural

meaning, and to leave hanging in the air the implication that as we all know what it means, we do not need to define it.

The Minister made me doubt part of my argument when she said that one thing that the amendment might do is create loopholes. If ever there was not a little loophole but a gap through which one could take a coach and horses, it is that which would be caused by relying on the natural meaning of the word ''advertisement'', although it is my hon. Friend the Member for Bury St. Edmunds who is the lawyer. Perhaps I should apologise to him for some of the rude comments that I may make about lawyers; I do not mean to offend him. People on the Labour Benches get offended, but that is because they are Labour politicians, not because they are lawyers. I do not apologise for upsetting them, although I apologise for upsetting my hon. Friends.

To rely on the argument that we all know what something means is to invite people such as my hon. Friend to be absent from the House more often in order to be in court justifying that. We would be in a real quagmire then. My little loopholes are as nothing compared with the Minister saying, ''It doesn't really matter. It's got a natural meaning and that will do.'' She must also accept that when one reads Chaucer or Shakespeare—I assure you that this is relevant to the point and not a digression, Mr. Amess—one finds that words that we now use to mean one thing then meant something entirely different.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

Of course. Perhaps the hon. Gentleman knew Chaucer.

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

I certainly feel old enough to have done so, now that I have listened to the hon. Gentleman's diatribe. Will he accept that what he has just suggested is only part of a thinly disguised filibuster and that it is much ado about nothing?

Photo of Sir David Amess Sir David Amess Conservative, Southend West

Order. If I felt that any Member was filibustering, I would call that person to order.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I am glad that you would do that, Mr. Amess, but I notice that you did not. Once again, I am sorry that Labour Members are not prepared to listen to any sort of debate about the legislation that they shove in front of us and expect us to rubber stamp without raising any queries. I make absolutely no apology for detaining the Committee. If the debate bores and upsets the hon. Member for North-West Leicestershire (David Taylor), I warn him that he has to put up with four more sittings. It should have been eight sittings, as offered in the first place by the Government Whip, who is not allowed to speak—but I will let that pass, because it would be out of order to raise the matter.

However, it is not enough to say that the natural meaning of a word is all that matters. What happens if the meaning of an advertisement changes? I think that the Minister made a Freudian slip—we will see what Hansard says tomorrow. As far as I am concerned, the

natural meaning of a word is not adequate. All the examples that the Minister gave us about why we were wrong and she was right focused on the purpose of something. I tried in an intervention to get a response. We heard that the purpose of things in a window was to promote tobacco. Not a word was said about effect.

It is perfectly possible that some people could argue—I am sure that lawyers such as my hon. Friend the Member for Bury St. Edmunds would be prepared to give it a whirl—that cigarette packets are not designed to look awful or ugly and put people off but to attract. If an attractive packet, which the Minister says is all right—the Government do not intend to include the packet—increases sales because it is brilliantly designed, the effect is that of an advertisement, as I understand clause 1. The Minister made no attempt to justify the inclusion of effect. If she does not like the amendment, I advise her to indicate that on Report she would be prepared to re-examine clause 1 with a view to putting it right in a way that she finds acceptable. It appears that she does not agree with our way of putting it right. However, I believe that she is beginning to indicate, by what she says, that there is a defect. If she reflects on it long enough, she might actually persuade herself.

The Minister said that the Government do not consider that tobacco is an advertisement. I agree with that, but I think that she meant to say that a packet is not an advertisement. What the Minister slipped in, if I heard it correctly—I hope that the record will show it—was that ordinary packets will not be considered to be advertising. That introduces a new concept. Who will determine what is an ordinary packet? What takes place in Committee becomes part of the public record and is used when one seeks to understand the meaning of the Bill when it becomes an Act. We now have the concept of an ordinary packet not being an advertisement. Does that mean that the Government now wish to set themselves up as design censors?

Photo of Pete Wishart Pete Wishart Opposition Whip (Commons), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Transport)

Methinks, along with most of the Committee, that the hon. Gentleman laboureth the point. If we were to take any word and expose it in the way that hon. Members have this afternoon, we would find any number of distinctions. The word ''conservative,'' for example, may be pursued and constrained in several ways. Perhaps the hon. Gentleman would consider that. If we were to spend as much time as possible looking at ''conservative'' as opposed to ''advertisement,'' we might spend even less time debating it.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

At the risk of being slightly out of order, the hon. Gentleman gives a good example of a word changing its meaning. My right hon. Friend the new Leader of the Opposition is doing a brilliant job of changing the meaning of the words ''Conservative party,'' but I shall not pursue that, because someone on the Government Benches will complain that I should not, and you, Mr. Amess, will tell me that I must not. I will leave matters well alone.

Whether we want to press the amendment to a Division is very much down to the Minister. In response to what we said earlier, I accept that some of

what we are suggesting is not perfect. However, we are raising issues that seriously need consideration and a thoughtful response. Just as the Minister is not persuaded that she can support the amendment, I doubt whether the clause will achieve what the Government want it to. I shall be interested to hear what she has to say because if she will reflect on the matter, and if we can revisit it on Report to pick up some of the points that have been raised, we would say thank you for that. If not, we might reserve our position until we have heard what she has to say.

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

The hon. Member for East Worthing and Shoreham asked me for some examples of loopholes created by his amendment. I thought I had done that in my earlier response, but I shall run through some for him again. There was the Marlboro ad—a huge cowboy—on the side of a van. There might be a price list with a Silk Cut logo spread across a billboard. There might be stationary covered in nothing but logos that drops out of a Sunday colour supplement. There might be the buying-up of premises in prime sites to spread logos and advertisements all over the building. There are plenty of ways in which a creative tobacco company or advertising agency could find a way to advertise its product under the Opposition amendment.

The hon. Member for Spelthorne (Mr. Wilshire) asked why we include ''effect'' and not simply ''purpose''. It is not really good enough for a company to argue that the purpose of the Silk Cut logo emblazoned on the side of its van is to identify the van for the driver so that he can find it in the car park, when its effect would clearly be to advertise Silk Cut cigarettes. I think that it is right that the Bill includes the effect as well as the purpose.

The hon. Member for Bury St. Edmunds asked why we could not use examples from other Bills. I have to say that, historically, the way in which the tobacco industry has behaved during the past few decades means that we should expect anything of it when it comes to finding a way round advertising bans. As I mentioned before, the Health Select Committee revealed some interesting information on the internal deliberations of the tobacco industry and the advertising agencies in that area, which is why we are right to begin by anticipating possible loopholes and ensuring that we have as comprehensive a ban as possible.

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds

My question is more specific; perhaps she could have another go at answering it. The specific definitions in other legislation that have been detailed by my party, presumably have led to loopholes by her logic. Could she detail the precedents on which she and her officials are drawing to substantiate the claim that detailed definitions of advertisements can be got round?

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

I think that I have done that in the examples that I have set out. I have set out several examples of the ways in which the amendment's detailed definitions could easily be got round: on a van

or a price list on a billboard. I have already done that without consulting huge numbers of lawyers. In Committee, I have come up with several possible ways round the amendment that would allow the tobacco industry to continue advertising. I think that those advertisements should be banned, and it is right that the Bill should ban them.

The hon. Member for East Worthing and Shoreham seemed to suggest that a way of coping with the fact that the amendment, or some form of it, would set up a lot of loopholes would be to create new powers to clamp down on future loopholes. It is interesting to think about how we would define a clause that would allow the exercise of those powers without using the word ''advertisement''. If we wanted to close those loopholes, we would want to prevent advertisements that were not being prevented by the amendment. If we were going to do that in regulations, we would have to return to the word ''advertisement'' in order to do so. In the end, the Bill turns on the natural meaning of the word ''advertisement''. Hon. Members have had all kinds of anxiety about that and have raised all kinds of quibbles, grumbles and complaints, but that is how we legislate: we put words in and we rely on their natural meaning. Whether it is ''tobacco advertisement'', ''tobacco product'', ''purpose'', ''effect'' or ''tobacco'', whether it is smoked, sniffed, sucked or chewed, we rely on the word's natural meaning. That is what we do when we legislate; it is what we do when we talk.

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds

She is just not accurate in what she is saying.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

Order. Perhaps the hon. Gentleman will rephrase his reference.

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds

I apologise, Mr. Amess, if any offence has been given. I do not believe that the Minister is setting out the position as fairly as she could. She is saying that legislation uses the natural meaning of the word. Manifestly it does not. In the Gaming Act 1968, the Medicines Act 1968 and all the other Acts that have been listed, the Government of the day did not rely on the natural meaning of the word. They went to a great deal of trouble, difficult though it may be for legal advisers, boring though it may be for Ministers, to draw up a long list of descriptions of what constitutes an advertisement. I ask the Minister again, in all sincerity, to explain why the Government of the day on this occasion do not do what previous Governments have done and make a long list.

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

I have on several occasions listed a series of possible loopholes that the amendment would create. I have also explained clearly why the tobacco industry must be treated with particular care and caution. We have evidence from Health Select Committees of the way in which it has behaved in this regard before, and it is right that we should set up the most comprehensible ban possible.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I am no apologist for the tobacco industry, as I have tried to make clear, but will the Minister explain why it is wrong for a business going

about its lawful activity of producing a product that a Government consider to be lawful and that should be available for sale to use every legal means at its disposal to sell its products? I thought that was what business was all about, or has the Labour party reverted to socialism and communism?

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

We are back to the Second Reading debate all over again. We have made it clear why we believe that the advertising of cigarettes and products that kill should be banned in this country. Nobody is preventing people from buying cigarettes or choosing to smoke. I strongly believe that people have a right to smoke, and tobacco products remain legal. However, for all the reasons that we set out on Second Reading—because of its effect on health and particularly on children—I believe that we should ban tobacco advertising.

Photo of Mr Andrew Hunter Mr Andrew Hunter Conservative, Basingstoke

Will the Minister address the point that I raised earlier out of order? I apologise, Mr. Amess, for reading the amendment incorrectly? It is the effect side that worries me, and the Minister is not addressing that point. Does she not realise that the inclusion of that distinction in the Bill, bracketing purpose and effect, creates a minefield for lawyers? How on earth can effect be established in a court of law?

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

Again, I disagree. As I think I explained earlier with regard to the Silk Cut ads spread across the side of the van, no matter how much the tobacco industry might disclaim that as the purpose of the advertisement, I think that everyone would consider it to have the effect of a tobacco advertisement. Inevitably, hon. Members will always be able to produce issues at the margins where questions and points of fact must be decided on the individual case, but many cases that will be covered by ''effect'' will be clear, but would not be covered simply by the phrase ''purpose''.

Photo of Mr Andrew Hunter Mr Andrew Hunter Conservative, Basingstoke

I am talking not about the Silk Cut van, but about the example that I gave earlier—it is the one given in the House of Lords by Lord Filkin—of

''a fast car in which the driver is seen smoking an identifiable brand of cigarette as he puts his foot on the accelerator.''—[Official Report, House of Lords, 16 November 2001; Vol. 628, c. 801.]

In that sort of indirect, secondary advertising the question of effect will be extremely hard to determine.

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

It will depend on what the advertisement looks like in practice. It will depend also on whether its effect is to promote cigarettes and tobacco products or whether there is hardly a glimpse of a tobacco product and nobody notices it because they are concerned only about the car. In the end, a judgment will have to be made on some of these cases. That is inevitable, and it is right that such individual judgments are made on a case-by-case basis, and not in Committee where we cannot see what such an advertisement would look like. I have responded in extensive detail and we should have time to consider the rest of the amendments, many of which have been tabled for discussion today.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I agree that we have had a full and frank debate about the amendment. However, at the end of it, we are no nearer to any definitions or avoiding lawyers instantly going to court if the Bill were passed in its current form.

It was telling that the more frustrated that the Minister got, and the more unable she was to counter some of the very good points made by Opposition Members, she seemed to relapse into a natural prejudice against the tobacco industry by coming up with phrases such as, ''Past experience of the tobacco industry would lead one to believe that it wants to get away with anything.'' As my hon. Friend the Member for Spelthorne has said, it is legitimate for tobacco manufacturers or retailers, just as it is for any other legal business in this country, to want to get on with the business of selling their products in as effective a way as possible. We are not arguing about that.

Since the Government were elected in 1997, they have made no attempt to go to the tobacco industry severely to tighten the voluntary agreement that many of us would say has achieved dramatic effects in the 25 years since it has been in operation. They have made no attempt to speak to the tobacco industry to produce a version of the voluntary agreement that went much further than before. There are a host of possible measures, and I have mentioned that I would be in favour of some of them.

My hon. Friend the Member for Bury St. Edmunds made an exceedingly telling point when he referred to the Consumer Credit Act 1974, the Medicines Act 1968 and the Gaming Act 1968. Those Acts appear to have worked, and I am not aware of an attempt by the Government to revisit any of them to tighten up on the definitions. If they had not worked, and the Gaming Act and the Medicines Act have apparently worked for 34 years, there would be a case for not having such tight definitions. In the Government's busy legislative process, I am not aware of any measures to revisit any of those three Acts.

If one goes through the exhaustive list that my hon. Friends and I gave in respect of the Consumer Credit Act, the examples of the gaps and loopholes with which the Minister belatedly came up were mostly addressed in it, or could be addressed by an adaptation of it.

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds

Is it my hon. Friend's deduction that the Minister cannot be bothered to draft a proper definition of an advertisement?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

To be fair to the Minister, she is usually full of energy and enthusiasm, as are her officials. There is no laziness in the drafting of the Bill. However, the Government's culture is one of leaving it to the courts rather than coming up with decent, closely-defined, exhaustively-debated legislation. We know that Labour members of the Committee are bored to tears, and they consider it impudent that they should be dragged to debate legislation in Committee. I thought that we all came to Parliament to ensure that legislation is properly scrutinised, effective, watertight, fair and will stand up in the courts for people who will, or will not, benefit from it.

To take the example of the van, it would be legitimate to limit a van to having the name of a product on its side. It could be Marlboro, but there would be no pictures or slogans. That would be a sensible precaution for vans, as heavy goods vehicles have to be labelled if they contain dangerous chemicals or other hazardous substances in case they are involved in accidents. Of course, it would be absurd to plaster the name Benson and Hedges dozens of times over a building, let alone on the roof as was mentioned earlier, given that it would be on view only to aircraft. The Bill could limit itself to one mention of a visible place and what goes on in the factory.

The same can apply to various issues. The exhibition of pictures is mentioned specifically in the Consumer Credit Act. There are many ways in which we could easily clamp down on a heck of a lot of loopholes, without there being much addition to the Bill. As it stands, anyone from the tobacco industry who is listening to the debate will have a shopping list of matters that they can instruct their lawyers to challenge in the courts the minute that the Bill is enacted, if they are so minded.

We have missed an opportunity to make it absolutely clear what they can and cannot do. However, the Minister prefers to leave it to the lawyers to argue the toss. That is unsatisfactory. The first clause is important. It is the litmus test of how we define the way that we continue; it is essential that definitions are watertight at the outset. The hon. Lady does not go along with that, and that is regrettable. The amendment is important and, on that basis, I shall press it to a Division and I urge my hon. Friends to vote for it.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 11.

Division number 2 Adults Abused in Childhood — Clause 1 - Meaning of ''tobacco advertisement'' and ''tobacco product''

Aye: 5 MPs

No: 11 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

It may be helpful if I advise the Committee that we have already had a wide-ranging debate on the first amendment, so it is unlikely that we shall have a debate on clause stand part.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

On a point of order, Mr. Amess. I anticipated that ruling, but one or two minor matters are not strictly covered by the next amendment. Will it be in order to refer to them during our debate on

amendment No. 2, given that we shall not have an opportunity to debate them later, and thus speed up the proceedings of the Committee?

Photo of Sir David Amess Sir David Amess Conservative, Southend West

It is proper that the hon. Gentleman has brought that matter to my attention. I shall certainly bear it in mind during the debate on the next amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I beg to move amendment No. 2, in page 1, line 7, at end insert

'but does not include a product which is made partly of tobacco (or any of its constituents) and is intended to assist a consumer of tobacco products to stop or reduce his use of such products.'.

It is a dead cert that the Government would want to adopt the amendment. It is helpful and the aim behind it is to achieve what we all want, which is to help people who want to give up smoking. In other words, we want to ensure that the Bill will not clamp down on various smoking avoidance products such as Nicorette patches, which try to wean smokers off cigarettes and other tobacco products. Although helpful, it is a probing amendment. If the Government can say that a helpful product will not be caught by the Bill, we shall be relieved.

It is not clear whether nicotine, as the most significant component of tobacco, is defined as a product that consists wholly or partly of tobacco. If it were, certain nicotine replacement therapy products would fall within the prohibitions of the Bill. We would have an absurd situation in which the Bill would prohibit cigarette advertising, but we could end up legitimately promoting pure nicotine consumption—an undesirable result. If the substance is not regarded as being a product made wholly or partly of tobacco, it is possible under the Bill for a product that is intended to be used recreationally and which can be

''smoked, sniffed, sucked or chewed'' or otherwise used, which includes nicotine that is derived from tobacco, but which does not otherwise include tobacco, to be advertised and promoted, subject to the product complying with an appropriate regulatory requirement. It is not certain what the Government's stance would be with such a product.

I think that the Minister said previously that nicotine products were not covered by the Bill, but by licence under the Medicines Act 1968, which had quite an airing during our earlier discussion. It must be made explicitly clear that nicotine-based replacement products—anti-smoking products—would not fall foul of the Bill. Perhaps the hon. Lady could give us such an assurance. If not, it seems perfectly sensible to add to the Bill that such products are specifically exempt from it. I cannot see harm in doing that, but she is in a much better position than me to know whether the amendment would have a counter effect elsewhere that we would not want to achieve.

Photo of John Barrett John Barrett Liberal Democrat, Edinburgh West

At first glance, I thought that the amendment was helpful, but it depends on the effect of advertising nicotine as distinct from advertising tobacco. Anyone could claim that a low-tar cigarette was being promoted to reduce a smoker's dependency

on high-tar cigarettes, and under the amendment advertisers could continue to advertise low-tar cigarettes and claim that they were beneficial to people who were addicted to high-tar cigarettes. I look forward to hearing what the Minister has to say. The initial appearance that the amendment is helpful does not stand up to scrutiny.

Photo of Mr Andrew Hunter Mr Andrew Hunter Conservative, Basingstoke

According to the hon. Gentleman's premise, would it not be a good thing if people were encouraged to move from high-tar cigarettes to low-tar cigarettes? What is his quarrel if that were the case?

Photo of John Barrett John Barrett Liberal Democrat, Edinburgh West

A movement towards no cigarettes is the desired end product. A move to low-tar cigarettes is not as good as that.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

Of both the amendments that have been tabled so far, I hope that the Government take amendment No. 2 less seriously. Whether we agree or disagree on the wisdom of the Bill in principle, I suspect that anything we can possibly do to reduce the number of smokers and therefore the harm that smoking does to us would unite members of the Committee—even my hon. Friend the Member for Basingstoke, who smokes. Perhaps he would be grateful if we could help him—or perhaps not.

Whatever we feel, we need to consider how to try to help smokers. I must rely on anecdotal evidence of friends and acquaintances who smoke who tell me how incredibly difficult it is to give up and how they need all sorts of help and support in order to do so. I read about various products on the market aimed at helping people give up, and as I understand the claims and some research done into them, some of them are effective in helping people give up smoking, which we all want to happen.

I understand that there is some doubt about some products whose origin is tobacco itself, rather than the chemical industry or another source. If the products that are shown to work fall foul of the prohibition, we are in danger of cutting off our noses to spite our faces and making it harder for people to give up.

I suppose that it is possible for people to argue—I shall be interested to hear whether the Minister chooses to do so—that if people cannot get hold of cigarettes, they might use cigarette substitutes and stick patches on themselves to get some sort of fix from tobacco, even if they do not smoke themselves. I suppose that it might be argued that it is possible to abuse such products in a way that is not intended. If the Minister wishes to argue that, I sincerely hope that she will produce research evidence to show that that has happened and will happen. If that is the argument against excluding some items that are made partly from tobacco, we must weigh whether the risk of allowing that to happen by excluding them from the ban is greater than the good that is done by promoting such items to help people give up smoking. I hope that the Minister will deal with that.

Mr. Amess, you kindly said that we could raise other issues, but for the moment I should like to focus on that. When I have heard what the Minister has to say, I may want to raise a few other matters.

Photo of Mr Andrew Hunter Mr Andrew Hunter Conservative, Basingstoke

I shall be extremely brief. The principle in support of the amendment has already been established in the clause. Paragraphs (a) and (b) deal with purpose and effect. Ultimately, the Government say that paragraph (b) is a matter of interpretation, and in implementation one for lawyers in courts. They accept the principle of effect. The effect dealt with in the amendment is that of people being encouraged to move from a high-tar cigarette to a low-tar one. Although the full purpose of the Bill is not met, it is partially met, in that that is a health-improving factor. There is, therefore, a logical argument in support of the amendment. The principle behind it is embodied in the Bill in the distinction between purpose and effect. The amendment would move people from a high-tar to a low-tar intake.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health 6:30, 7 May 2002

I have considerable sympathy with the intention behind the amendment. Clearly we need to ensure that people have access to the support and help that they need if they want to give up smoking. We know that 70 per cent. of smokers say that they want to give up. That is why we have been so clear in promoting the availability of nicotine replacement therapy and Zyban on the national health service, and asked the National Institute for Clinical Excellence to advise us on it. The institute pronounced it an extremely cost-effective way of improving health. The intention is to promote ways of helping people give up smoking.

The reason that I reject the amendment is as follows. First, the Bill does not prevent the advertising or promotion of nicotine replacement therapy, Zyban or any similar product that is available on the market to help people give up smoking. That is because although nicotine is a constituent of tobacco, tobacco is not a constituent of nicotine. Tobacco is not an ingredient in nicotine replacement therapy—Zyban, patches, gums, Nicorette, and so forth—so there is no danger that the Bill would cover the sorts of nicotine replacement therapy that we all want to be widely accessible and available for people throughout the country.

However, the amendment, as it is drafted, would create a loophole along the lines that was described by the hon. Members for Edinburgh, West and for Basingstoke. The issue of low tar offers us a good example. Ever since the harmful effects of cigarettes became clear in the 1950s, tobacco manufacturers pursued a low- tar strategy. Cigarettes were engineered to produce reduced tar and nicotine yield on laboratory measurement. Since the 1970s, low-tar brands have been promoted with the implication that they are less harmful to health than high-tar brands, and additives were introduced to improve the palatability of low-tar cigarettes.

We would not want to accede to the advertising of low-tar cigarettes but, as the hon. Member for Basingstoke pointed out, the amendment would make that possible. It would be a serious problem if the advertising ban were suddenly opened up to permit the advertising of low-tar cigarettes: there is now a clear scientific consensus that the low-tar strategy has not

produced the expected benefits to individuals and to public health. The Royal College of Physicians said in its report of 2000 on nicotine addiction in Britain that smokers compensate in their smoking behaviour to maintain a constant nicotine and tar level, and the United States of America's National Institutes of Health and National Cancer Institute have made similar points. Smokers unconsciously alter their inhalation patterns and block ventilation holes with fingers or lips, so the machine measurements do not represent what a human being actually takes in. Indeed, the promotion of low-tar brands may have lulled some smokers into a false sense of security, so that they continue to smoke, rather than to quit altogether.

The low-tar example indicates why we would not want an exemption for low- tar cigarettes on the basis of claims that they are safer, or that they are a way of reducing the use of tobacco products. The same sorts of arguments that were used in favour of low-tar cigarettes might be applied to other products coming on to the market; they could be promoted by the tobacco industry as so-called safer products. With regard to them, we may find ourselves in the same situation as we were with low-tar cigarettes, 10 or 20 years down the line—and we now deeply regret the decision that was taken to permit their advertising.

That is why I am extremely cautious about the approach taken in the amendment, although I have sympathy with the intentions that lie behind it. I assure the Committee that nicotine replacement therapy will not be included, and I urge Committee members to reject the amendment because of the potential to replicate the low-tar problem, or a future example of that.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I am not quite sure why I intend to do this, but I want to try to help the Government out of a problem that they have dug themselves into.

If I understood the Minister correctly, when she responded to the points that I and others made, her argument was that nicotine was not tobacco—I think that those were the words that she used. That is fascinating. With regard to the arguments that we were having about nicotine replacement—about any product that was partly from tobacco that might be useful—everything that I said was based on the presumption that the nicotine, coming from tobacco, would make that product something that comes from tobacco. However, the Minister has said that nicotine is not tobacco.

I wish to return to a previous debate, although I promise not to open it up again. Suffice to say that the Minister was concerned that the tobacco industry would use every means at its disposal to further its legitimate business, and she was worried about us creating loopholes. I think that the Minister has now created the most enormous loophole, by saying that nicotine is not tobacco. What if someone worked out how to extract the nicotine from tobacco and to make a product for recreational use? Remember that the amendment is intended purely to help people give up smoking. The words of the amendment will stand in the record and can perhaps be used in future. A

product could be put on the market for recreational use, not for medical use or to help people. Such a product could contain nicotine, which, if I understand its effects, is among the most harmful parts of tobacco.

Are we to allow the Bill to flag up an opportunity to find a way round the provisions by creating an entirely new product that can be used recreationally? I am sure that that is not what the Minister intends, but I fear that that is what she said. I hope that we can clarify that. If she takes my worry seriously, she may wish to try to put that matter right on Report.

I shall raise a couple of other issues, so that I do not have to rise again unless the Minister provokes me. The first I mention in order to help the Minister. I have been reading the list of things that people cannot do. ''Tobacco products'' are those intended to be

''smoked, sniffed, sucked or chewed.''

I wondered why the word ''swallowed'' was not there, too. It is possible to consider me pedantic or frivolous, but I worry about the loopholes. In fact, I was partly persuaded by what the Minister said about creating them. The absence of the word ''swallowed'' is surely an invitation to the tobacco industry to say, ''We are not producing this product to be sniffed, sucked or chewed. We are putting this product on the market to be swallowed.'' If the industry uses that argument, it could claim that people who sucked or chewed the product before swallowing it just happened to do so.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

It seems obvious that in the extremely unlikely eventuality of tobacco companies urging people to swallow their product, a simple one-line amendment would be sufficient to overcome the problem.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

It would be. I regret that we do not have more than five sittings, but I will be amazed to get to the end of the fifth without hearing the argument, used in another place and in previous debates, that we want to get the Bill right, as Government time for legislating is so tight that they wish to avoid the one-line amendment.

I agree with the hon. Gentleman, but I am trying to save the Government from themselves. I shall be told off for trying to be helpful to the Government before the Committee is over. I suspect that it would be more sensible to try to get the provision right now, although I have many reservations about trying to be helpful when it is my job to oppose this dreadful Government on behalf of Her Majesty's Opposition. By not putting the word ''swallow'' into the Bill, we are offering the tobacco industry another opportunity to do what the Minister fears that they will do.

I shall quickly raise the question of snuff, so that we do not have to have a stand part debate. Given what the Government are seeking to do under the Bill, I can understand all the things to which they object, but I wonder whether the Minister will clarify why ''sniffed'' has to be included. If my arguments proved to be justified, a one-line amendment to take out the word could be deployed. We have discussed alternatives to

smoking, including some of the therapy alternatives. If one takes snuff, and I hasten to add that I do not, and have no wish to do so, one does not set fire to it. It would be quite awkward to put it up one's nose and set fire to it. Therefore, the harmful effects of setting fire to something do not apply. That is a plus in itself, as it is the combustion of tobacco, among other things, that does a huge amount of harm.

I am aware of the research into nasal cancer and it could be argued that if someone who sniffs snuff—I shall be amazed if I do not make a mistake on that before the debate is over—is going to claim that that is a cause of nasal cancer, we need to have the medical research and statistics by which that claim is justified. If the use of snuff—something that one does not set fire to—is a less damaging way of using the product, it might commend itself to the Government to allow that to happen. Whatever the Minister might think about the wicked tobacco industry, as she sees it, I doubt that the Government would get very far trying to persuade us all to go round sniffing.

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

I shall attempt to respond briefly to the arguments. I am always keen to close loopholes and should be happy to examine further the issue of whether products to be swallowed should be included. They have not been so far, despite the extensive scrutiny in this House and the other place, but I am always happy to look again at any potential loophole that should be closed.

As I made clear, tobacco is not a constituent of nicotine; nicotine is a constituent of tobacco. The Bill is about controlling the advertising and promotion of tobacco products. There is no known nicotine product anywhere that is as efficient as tobacco in getting the nicotine to the consumer but, clearly, if new non-tobacco products are being promoted or seeking to come on to the market, we have ways to regulate those under the Consumer Protection Acts or, if swallowed, under the Food Safety Act 1990. There are frameworks for tackling such matters, although if new products are created in 10 years' time that none of us has anticipated, inevitably, the legislation will have to be considered in the light of that.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I am grateful to the Minister for those comments about other ways of controlling certain products. Can she tell us whether either of those routes for controlling such products would have any control whatsoever on the advertising of them?

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

If they were not allowed to be sold, then obviously there would be no point in advertising them. Clearly, there are links between the sale and the advertising of products but, as I recognised, if new products emerge or if the market changes in 10 years' time, future Parliaments will have to take that into account. It is right at this stage to introduce this Bill on tobacco products, because they are the most efficient and effective way of providing people with nicotine. At the same time, it allows us to promote effective nicotine replacement therapy to help people who want to give up smoking.

The hon. Member for Spelthorne mentioned snuff. That is not as dangerous as smoking, but it is addictive and a source of increased cases of oral and nasal cancer. Although the hon. Gentleman might not anticipate people going round sniffing no matter how much the tobacco industry promotes it, we should never underestimate possible changes in fashion and the different approaches and attitudes that generations of young people can have to new products over time. It would be unwise for us to introduce a loophole in that respect. That is why we reject the amendment.

Photo of Mr Adrian Flook Mr Adrian Flook Conservative, Taunton

First, I should like to draw hon. Members attention to my entry in the Register of Members' Interests.

I should like to ask the Minister about her comments that there could be a Marlboro advert on the side of a van or a price list with a Silk Cut logo on it, or logos themselves falling out of colour supplements. She went on to say that advertisers could advertise ''their'' product. I am as keen as everyone else to close loopholes. The phrase ''natural meaning'' has come up. My concern is more to do with clause stand part than with the amendment, so I am grateful for being able to raise it here—a concern about the natural meaning of the word ''promotion''. I want to be helpful and deter clever lawyers and I would have thought that the natural meaning of ''promotion'' is the positive promotion of something. Have the Government given any thought to whether a competitor might diss a product and in so doing advertise it? I am aware that comparative advertising is just about legal in this country but it is not as well established as in America. Might not clever lawyers in the big wide world be able to use the negative of ''promote'', which is not the natural meaning, and consequently get around the legislation?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 6:45, 7 May 2002

We have had another interesting debate, but I want to return to a couple of points on the clause that a clever lawyer could easily march through and we want to prevent that. The Minister's response was going quite well, but took a nosedive when she referred to something not being entertained here. She gave the excuse that tobacco is not an ingredient of nicotine. That is legitimate, but nicotine is a product of tobacco. I am no expert on tobacco, but I am led to believe that some nicotine replacement drugs are produced from the genus of plants known as Nicotiana, which have a high nicotine content. The waste products of the tobacco industry and the tobacco liquors used in Virginia cigar production are frequently used to produce nicotine replacement drugs. The nicotine is obtained by water vapour distillation or precipitation from tobacco extract or nicotine extract.

If I were a clever lawyer, which I am not, I could make a convincing case for nicotine being a product of tobacco, which is another form of tobacco product. Although it may not be a tobacco product in that it does not contain tobacco, it is a product of tobacco

because it is made by a vapourisation process of tobacco. It is a product of tobacco and, in another sense, a tobacco product.

The more I repeat that, the stronger the argument becomes. Has the Minister considered that that is just the sort of argument that a lawyer could make? I repeat that it would be helpful to define in the Bill that nicotine replacement therapy products would not be hit by the advertising ban. Obviously, they should be promoted and it should be legitimate to advertise them, although I do not know who is allowed to produce them. If I were an executive of a tobacco manufacturing company and feeling under threat from the reduction in product sales, I would go into the production of nicotine replacement products to protect both ends of the market. As they are licensed under the Medicines Acts, I presume that they are produced by pharmaceutical companies, but I see no reason why tobacco companies would not branch out

I may be making a pedantic point, but it seems to me as an amateur and non-lawyer that it should be pursued. We are trying to be helpful in the amendment and the Minister sympathised with its principle so I ask her to reconsider it. It is a probing amendment and I shall not press it, but it highlights some of the problems that may arise without a better definition in the Bill. Those problems could undermine some of the good work that the Government and other health promotion bodies are doing to help people to stop smoking. I am not going to press the amendment to a Division. I do not know if the Minister will respond to my comments at this stage, but I think that she should be aware that the matter is not as easy as the terms in the Bill suggest.

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

I shall respond briefly. The hon. Member for Taunton (Mr. Flook) referred to the problem of a company advertising its product or someone else's. The company doing the advertising is the one that would be guilty of the offence. Whether it is promoting its own tobacco product, or deliberately promoting or attacking another company's product, if the effect of the advertisement is to promote tobacco products, it will be covered by the Bill.

Photo of Mr Adrian Flook Mr Adrian Flook Conservative, Taunton

Perhaps the Minister did not fully understand what I was saying because she was too busy discussing with her Whip what time we were going to finish. My point was that promotion is a positive act. If Philip Morris, which does not make Benson and Hedges, said that Benson and Hedges are terrible in an advertisement, and left it at that, it is not promoting that brand. Who does one take to court?

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

The company that would be taken to court is the one doing the promoting. The question would be whether the effect was to promote a tobacco product or not. As I understand it, his argument seems to describe a case in which a company is attacking rather than promoting a tobacco product. If a company put forward an advertisement in which the effect was to try and persuade people to give up smoking or give up a particular product, the question would be: is the effect of the advert to promote a tobacco product? If it is promoting tobacco, it is

covered by the Bill. If it promotes giving up smoking, that is a different question entirely. We are concerned with whether companies are promoting tobacco products. That is what the Bill—and the clause—is all about.

On what is a constituent of what, the argument of the hon. Member for East Worthing and Shoreham seemed to get incredibly tied up in knots. If we were to apply the same argument to water and oranges, we could argue that water is a constituent of oranges because oranges are made up of water. It is possible to extract water from oranges. However, no one would argue that water was made from oranges or that oranges were somehow a constituent part of water. It is a statement of fact that nicotine is a constituent of tobacco products, but tobacco is not a constituent of nicotine.

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

Is it not a more direct way of demolishing that argument to suggest that it is paralleled by an age-old example of a lack of logic. We might say that all barmy MPs are Tories, but not all Tories are barmy MPs.

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

My hon. Friend makes a pertinent point. I think that I have responded to the points that have been made. As I have said, we sympathise with the intention of the amendment, but it would cause all sorts of serious problems, particularly concerning the issue of low tar cigarettes. That is why we oppose the amendment and ask the Committee to vote against it.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of the debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 1 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Fitzpatrick.]

Adjourned accordingly at six minutes to Seven o'clock till Thursday 9 May at Nine o'clock.