§ Mr. Pitman
I beg to move, in page 5, line 39, at the end, to insert:(3) For the purposes of the said section six no trade mark which on the day this Act is passed is registered under the Trade Marks Act, 1938, in respect of any food or drug, shall be treated as a false description of that food or drug or as being otherwise calculated to mislead as to its nature, substance or quality.1483 Having just agreed to the new Clause in regard to cream, we have, in principle, got into this Bill two quite different methods of dealing with what could be described as misleading nomenclature. In the case of the substance "cream," alone we have a specific new Clause dealing with it. We have got substances other than cream, however, dealt with in Clause 5.
I take as an example of a substance other than cream the common ocean sponge. We get the situation that describing as cream what is not cream is specifically prohibited. But, on the other hand, there is, as has been explained by the Minister, a specific protection of the use of the word "cream" as a term of art for describing that which in point of fact is not cream but is, say, cream of rice or anything of that kind.
In the case of sponge, however, there is no prohibition of a description as sponge of what is not a true ocean sponge but say a porous rubber substance. Equally, there is no protection for the use of "sponge" as a term of art in something which has no relation whatever to an absorbent thing for washing. For instance, the hon. and learned Member for Kettering (Mr. Mitchison), who I see in his place, gave as an example "Mitchison's angels on horseback." I am picking "Pitman's sponge fingers." A sponge finger is notoriously not made of sponge at all and nor is it a finger. Nobody going into a shop and asking for Pitman's sponge fingers would expect to get a man's fingers or a piece of sponge.
Up and down the country a quantity of well established trade marks and trade designations are in use. The various associations for which I speak are particularly anxious there should be a protection for these established trade marks and that there should not be prosecutions under this Bill for what could be technically described as misleading designations because words in the components of those designations are in isolation, not literally true. I think it is better to deal with hypothetical cases like Pitman's sponge fingers, which may easily stand for a well known and long established trade mark.
We could have moved and discussed this Amendment in terms to include, with existing trade marks, also future trade marks of that kind, which were to be 1484 accepted and registered. But, since it was considered that it might be dangerous to open a future door for people to abuse the protection which would be given by this new subsection, it was considered better to give protection only to existing trade marks and to concede the point as regards all future trade marks. It is from that point of view of only existing trade marks that this Amendment is moved.
However, all such existing trade marks have been not really misleading, but only misleading in the sense that they have had ambiguous wording, as in my example of a sponge finger; they have not been actually misleading so as to make people buy something which they did not understand they were buying. There has, moreover, been plenty of time since 1938 to prosecute in such cases, if any, as might be on the border line of being misleading. A trade mark like "Bristol Cream" would be a bad example because it will be the new Clause which will permit that and save it from all dangers of prosecution. Let us take "Milk of Magnesia." Nobody who bought it in the past can have supposed that "Milk of Magnesia" came out of a cow. Do we want to submit to risk of prosecution in the case of milk what we have just protected in the case of cream. Ought we not to protect milk also?
We are then seeking in this Amendment to give protection for these brand names to the legitimate trader—it is an immunity which in practice he has enjoyed for a number of years—and to make it possible for him to rest easy that he will not be prosecuted. We are giving this protection to the man who sells "Bristol Cream." Why cannot we give it to the man who sells "Milk of Magnesia"?
§ Dr. Stross
Does the hon. Gentleman seriously suggest anyone who sells "bull's eyes" to children, or "cat's tongues" to young girls, or to elderly people for that matter, will get into trouble, or have any difficulty?
§ Mr. Pitman
That is precisely my point. If that is not the intention of this House, it is just as well we should make it perfectly clear that we have no such intention. In the case of cream we are going to give protection to "Bristol Cream" and cream rice. If we are doing that for cream, ought we not to do it 1485 in the same way for all other comparable cases as well and give to all the existing non-misleading terminologies the protection we are prepared to give under the "cream" heading?
What is here suggested is a complete defence in perpetuity for all trade marks against prosecution under Section 6 of the parent Act. Under that Section it is an offence in the wrapper or container falsely to describe the food as beingotherwise calculated to mislead as to its nature, substance or quality …On what grounds should we argue that because there is an existing trade mark it should never be possible in the future to bring action under Section 6?
My hon. Friend in the course of his argument, agrees that it has not happened and the danger is not a real one. I want to face it on a point of proof. A trade mark under the Trade Marks Act, 1938, does not of itself provide the necessary guarantee. Scrutiny by the Board of Trade of such suggested trade marks is not precisely the same kind of scrutiny as would be needed to make such an exclusion possible. So I would say to my hon. Friend that it would be wrong, merely because a trade mark was in existence today, to exempt such a substance from a Clause which, after all, is only affected if the description is calculated to mislead.
My hon. Friend referred to "angels on horseback." I assume he had in mind any trade mark connected with that product, but nobody would suggest that a person ordering that really expected to find on the mount an angel in protein or in any other form. I suggest we remind ourselves of the general words of the offence, words that have been there since 1938, and that we do not seek to exclude these or any other particular category of substances, because in principle it would be undesirable.
§ Mr. M. Follick (Loughborough)
The Minister is no doubt aware of the advertisement of Beecham's Pills being worth a guinea a box. Would that pass or not?
I am not prepared to take upon myself the responsibility of the courts in that matter. The essence is not whether these Beecham's Pills have any 1486 effect on the human body, but whether the description falsely describes or otherwise is calculated to mislead as to the nature, substance or quality of these delicacies. I will leave the hon. Member to judge from his own experience.
§ Mr. Pitman
In asking the leave of the House to withdraw the Amendment, may I just ask the Minister why he is giving perpetual protection to the word "cream" and denying it to other substances which will be subjected to perpetual risk of prosecution?
I can assure my hon. Friend that he misconstrues what is being done in the matter of protection for cream. Now embedded in the statute is a very clear-cut definition. There is no argument that there should be a real insistence on accuracy of description, and this accuracy of description is generally required by Section 6 of the 1938 Act.
§ Amendment, by leave, withdrawn.
§ Mr. Higgs
I beg to move, in page 5, line 45, at the end, to insert:Provided such regulations shall not apply to food prepared or sold with a view to consumption on the premises.The purpose of this Amendment is to deal with a point which was raised in Committee and in respect of which my hon. Friend promised to make researches before the Report stage. The point arises on the subsection which gives power to the Minister to make regulations for imposing requirements as to the labelling, marketing or advertising of food. We want to make sure that perhaps by accident no regulation shall inadvertently require the proprietor of a restaurant or café to set forth in detail either on the menu or in a notice in the window a recipe of all the dishes or any of the dishes that will be sold inside.
Where we empower the Minister to make the regulations the operative words are not in the Bill but would be in the regulations, and it may well be that my hon. Friend will tell us that it is impossible to write words into the Bill which will prevent a mistake from happening and that we shall have to trust him, his successors and the House of Commons to watch the point for us.
1487 7.45 p.m.
There are two separate categories of case. The first category is where the public has got hold of a name, accepted it and adopted it with the result that it is so well known that Parliament would be wasting its time to try to legislate it out of existence. No one imagines that Lancashire hotpot comes from Lancashire or that Welsh rarebit comes from Wales. It is no good compelling a cafe proprietor to disclose precisely all these things or to say in his advertisement why they are so known.
But there is the other class of case where the proprietor of a restaurant likes to use fancy names which he invents in order to describe his dishes. Hon. Members who eat in the Members' Dining Room will know that sometimes we have chicken grande mére, which is a contradiction in terms as I understand it. Are we to prevent proprietors from describing things with names of that sort?
A friend of mine was dining out and he was offered as a sweet puits d'amour voilé which, as I understand it, either means a veiled well of love or a well of veiled love. My French is rather restricted so I cannot tell which is correct. I hope that the regulations which may be made under this Clause will not inadvertently prevent such good old-fashioned practices as those which I have described.
§ Mr. Mitchison
I hope the Minister will not accept this Amendment, because it ought to be a matter for the regulations. Let me give the hon. Member for Bromsgrove (Mr. Higgs) a very simple instance. We all know the story of the waiter who came round with a dish and, being a Chinaman, found conversation with the person to whom he offered it a little difficult. The person in question turned round and said in a quiet tone of voice, "Quack, quack" and the waiter replied "Bow-wow." Supposing the contents of that pie had been advertised for sale in the window as dog pie, I suggest it would be rather misleading and a proper matter for control under these regulations.
Clearly there is a presumption here that the Minister who makes regulations for imposing requirements in 1488 respect of the labelling, marking and advertising of food will show common sense in what he does. I think that is the basis of the answer which I must give to my hon. Friend the Member for Bromsgrove (Mr. Higgs). When he raised the matter before he was anxious about the power to require the disclosure of recipes. I examined the point, taking advice, and I am assured that no power would lie to compel the disclosure of recipes.
As the hon. and learned Gentleman the Member for Kettering (Mr. Mitchison) pointed out, the words here are far too wide. In so far as there are descriptive terms applied to any catering establishments or canteens, or whether they be notices in cafeterias or other indications of what the food is, it is right that the same considerations in labelling, marking and describing the food should apply inside and outside. It would be wrong for one consideration to apply to food that was bought and taken home and another to the same food that was bought in some café. I can assure my hon. Friend that recipes are not covered, and I think that I can say here, speaking for both sides of the House, that it is a reasonable presumption that the Minister will act with good sense in this matter of the field that is sought to be covered by legal definition.
§ Amendment, by leave, withdrawn.