HC Deb 26 October 1954 vol 531 cc1811-41
The Chairman

The first six Amendments in the name of the hon. Member for Sunderland, North (Mr. Willey) and the Amendment in the name of the hon. Member for Dartford (Mr. Dodds) all go together. They are:

In page 2, line 23, leave out from "Act," to "it," in line 28.

In page 2, In line 29, leave out "the operation in question," and insert "the sale."

In page 2, In line 32, after "nature," insert "or substance or quality."

In page 2, In line 33, leave out "operation," and insert "food or drugs."

In page 2, In line 34, at end, insert: and that such person had taken all reasonable steps to bring the notice to the attention of the purchaser.

In page 2, leave out lines 35 to 41.

In page 2, line 41, at end, insert: (3) No person shall sell or offer for sale for human consumption any food to which any substances which are not derived from vegetable or animal sources have been added or which has been processed by means of any substance which is not itself a food unless such food has attached thereto a notice of adequate size distinctly and legibly printed and conspicuously visible clearly stating the ingredients contained therein or the nature of the process and the substance used, and a person who contravenes the provisions of this subsection shall be guilty of an offence under section two of the principal Act.

6.0 p.m.

Mr. Willey

So far as I am concerned, the Amendments in my name could conveniently be discussed together.

Mr. Dodds

Being a co-operator, even though I do not believe that these Amendments and the Amendment in my name go together, I will co-operate.

Mr. Willey

I beg to move, in page 2, line 23, to leave out from "Act," to "it." in line 28.

This may look a formidable list of Amendments, but their purpose is quite simple. It is to protest against what appears to us to be some rather clumsy draftsmanship. We are endeavouring to simplify the Clause. I will claim the virtue for these Amendments that the Clause, as amended by them, would be simple to comprehend—

Mr. G. Darling

It would be in English.

Mr. Willey

It would serve the purpose of the Government if the Clause were simple to comprehend. I am surprised that we have not one of the Law Officers with us on this occasion. I will call the attention of the Parliamentary Secretary to the defects of the Clause as it stands. To take an illustration, it refers to Section 3 of the principal Act and the sale of food to which any substance has been added, or in the preparation of which any substance has been used as an ingredient. or from which any constituent has been abstracted, or which has been subjected to any other process or treatment, other than food thereby rendered injurious to health. When we look at Section 3 we find that it does not deal with that, but with the prescription of quality demanded by the purchaser and goes on, in subsection (2), to deal with regulations dealing with the substance of this reference. I made some paving remarks about legislation by reference, but this makes it difficult for people who turn to the Bill to understand what is its effect. I claim no more merit for the Amendments we have put down than that they would at any rate provide a Clause which would be easily understood.

If the Parliamentary Secretary does not like the Clause as it would appear with these Amendments, he should give an assurance that he will ask the Solicitor-General to have a look at it. The Solicitor-General is a new Law Officer and on occasion he has expressed himself about the wording of our legislation. We are not quarrelling with the purpose of the Clause, but it should be in language which might be better understood.

One of the Amendments is of substance, although I do not quarrel with its being considered with the others, as we shall make more progress in that way. That Amendment is to page 2, line 34, at the end, to insert: and that such person had taken all reasonable steps to bring the notice to the attention of the purchaser. We know from other legislation that that is a very necessary safeguard. I can see no reason why the Parliamentary Secretary should not accept this Amendment. As it stands the Clause provides a defence if it is not done fraudulently and if there is a notice of adequate size, distinctly and legibly printed and conspicuously visible. But it is possible to conceive circumstances in which even that would not be an adequate safeguard to the consumer.

Where does the panty opposite stand on this matter? I hope that someone will speak for the consumer, for the first time this afternoon, in discussing this Amendment. Why should we not have this additional precaution to safeguard the consumer? Although we make these provisions there is no reason why we should not further provide that such a person should have the onus placed on him to take all reasonable steps to bring the notice to the attention of the purchaser. I should have thought everyone in the Committee would accept this as a most reasonable Amendment and that I need not say anything more about it.

Mr. Dodds

My hon. Friend mentioned that these Amendments were similar. In speaking of the Amendment in my name, to page 2, line 41, I hope that I may put my case in such a way as to show that it is vitally important. I believe that the Parliamentary Secretary is anxious to produce a Bill which will be a big step forward even on the 1938 Act.

I cannot see why this Amendment should not be accepted. While many people would like to ban all chemicals which have not been proved to be safe, this Amendment does not ask for that to be done. It says that where they are from vegetable or animal substances there is no need to tell the purchaser, but, if they happen to come from minerals, for instance, that should be declared in such a fashion that the purchaser will be aware of what is in the article he or she is buying.

Mr. Fort

Including salt?

Mr. Dodds

If it is mineral that should be mentioned. I would not feel so definite about this Amendment as a layman but the Food Education Society, with which some of the finest medical people in the nutritional world are concerned, believes that because there are chemicals now being used which are of mineral origin and are still under a form of suspicion, it is essential that the public should be aware of any substance which derives from that source and happens to be in any goods they purchase.

Dr. Stross

Does my hon. Friend mean by "mineral" in the context he is using, artificial substances not naturally found in plants or animals?

Mr. Dodds

I am very grateful to my hon. Friend, who has technical knowledge of these subjects, but I would have thought that the way in which I had put it as a non-medical man clearly indicated the purport of the Amendment. If, not having medical knowledge, I have not put it as clearly as it should be put, it has now been made quite clear.

In asking that this Amendment should be given very serious consideration, I call in aid doctors other than my hon. Friend the Member for Stoke-on-Trent, Central (Dr. Stross). Doctors are declaring that there is a universal weariness today and much of it is because of the development of the use of chemicals since the Second World War. Some doctors are claiming that the main trouble is that we are being pickled by chemicals. On Thursday night, in the Adjournment debate, I hope to show that this weariness has a bearing on physical fitness.

I ask the Parliamentary Secretary to accept this Amendment. He did not seem to be too clear on this matter and showed lack of knowledge in the Second Reading debate. He said: For example, in recent years dulcin, a sweetening substance, was added during the period of shortage of sugar. Experiment showed that dulcin caused tumor formation in rats. That was regarded as a strong enough suspicion to ban its use. There are other examples."—[OFFICIAL REPORT, 23 rd July, 1954; Vol. 530, c. 1766.] The hon. Gentleman will remember that he gave way at that point and I asked whether he agreed, in view of the fact, for instance, that agene had been used on animals and proved harmful, that we ought to be more careful about the effect on people.

I use that example to indicate that there is nothing but doubt about many of the mineral chemicals used in food manufacture and processing. I could, of course, give examples relating to analine dyes, but I wish to follow the example of the Parliamentary Secretary and not make a point which might unnecessarily create alarm in the country about something which is not yet proved. On the other hand, I ask that we shall not be apathetic about these matters. All we are asking in this Amendment is that people who buy these goods should know in advance whether they contain any substance which is derived from other than animal or vegetable sources.

During the Second Reading debate I made the point, which was received with approval, that what is needed is not so much the creation of punishable offences, but greater facilities for educating the public. Therefore I ask that we should on that score, if for no other reason, accept the need for making this information available to the consumer. Curiosity will be created because of many of the strange names being used, and it would encourage the public to find out more about the food they buy.

I think that this would receive the support of reputable manufacturers. Many of them are concerned that others are introducing substances into foods because they are cheaper, and as a result the reputable manufacturers find themselves handicapped. I hope that this will be regarded as a vital Amendment, if we are sincere in our desire to provide pure food for the people.

Mr. Hastings

May I ask my hon. Friend whether he classifies dulcin as an animal, vegetable or mineral substance?

Mr. Dodds

I believe that it is neither animal nor vegetable, and, therefore, would have had to be declared to the public. But since it has now been banned, there is no point in asking for that.

Dr. Stross

Listening to my hon. Friend the Member for Dartford (Mr. Dodds), who put his case very well indeed, I wondered whether what he was asking for is covered in the first seven or eight lines of the Clause. My hon. Friend is asking for labelling if there has been processing or additional subtraction from the particular article or foodstuff. If that be so I am sure that the Parliamentary Secretary will agree that this Amendment should be accepted or that the assurance for which my hon. Friend asks should be firmly given.

Were he present, the Minister of Health would agree that his chief medical officer has referred in his reports to the sort of thing about which my hon. Friend has spoken. There are produced substances or by-products of the high explosive industry, and in some cases the petrol distillation industry and from other sources, which provide artificial substances which are not in their molecular form known in any natural animal or vegetable substance. We have to be careful until they have been fully and adequately tested in case they may prove harmful to human beings over a prolonged period. That is why we have this Bill. I think that the Parliamentary Secretary will agree that that is the whole burden of what my hon. Friend was saying, and I hope he will accede to our request.

6.15 p.m.

Dr. Hill

I will deal with the Amendments taken collectively by the hon. Member for Sunderland, North (Mr. Willey); his claim to have rewritten the Clause with greater clarity and his request for the views of the Solicitor-General. I will, of course, seek the views of the Solicitor-General.

While I congratulate the hon. Gentleman on achieving greater clarity, I am bound to say that he has seriously damaged the Bill by what he has done. The Committee will notice that in providing a defence under Section 3 of the principal Act the hon. Gentleman has so done it as to make it possible for a person convicted of the addition, etc., which was injurious to health to have a defence that it was not fraudulent, and that he put it on the label. I know that the hon. Gentleman did not intend to do so, but that illustrates the point that greater clarity sometimes results in an important and undesirable change of meaning.

I agree with the hon. Gentleman that the most important point in these Amendments is contained in that Amendment which would add, and that such person had taken all reasonable steps to bring the notice to the attention of the purchaser. I have given a great deal of thought to that Amendment and I have asked myself what, in fact, it would mean in terms of a sale across the counter. The product is labelled according to law. Is it the duty of the assistant to do anything? He must take all reasonable steps to bring the notice to the attention of the purchaser. Has he to say anything to the purchaser in selling the product?

We are all entitled to our own interpretation of the words. but the person making a sale in this case is the person charged, that he had not taken all reasonable steps to bring the notice to the attention of the purchaser"—

Mr. M. Turner-Samuels (Gloucester)


Dr. Hill

If the hon. and learned Gentleman would allow me for one moment—I am quite sympathetic to this, but I do not want a form of words which is so vague as to seem to create an intolerable burden or something which cannot easily be understood. I will look at the point again, but our first reaction is that it may prove to be exceedingly difficult to operate.

Mr. Turner-Samuels

I agree with the Parliamentary Secretary that it is a serious matter which requires careful thought. There may be in a shop, on the counter or on the shelves, hundreds or thousands of articles, and the suggestion that an assistant or the proprietor of the shop, when he sells some article from those many articles to one customer in a shop which may be full of customers, is specially to take further unspecified steps to bring the notice to the attention of the customer, is not a practical suggestion and would be merely adding another offence to the many already in existence.

The Minister would agree that the notification ought to be of such a conspicuous character that it is brought home to the person who is purchasing, but to put the onus beyond that would seem a very difficult thing to do.

Dr. Hill

It is provided that the notice shall be conspicuous. If the Amendment is withdrawn we will look at the point to see whether we can meet it. At the same time, we do not in any way commit ourselves, because of the immense difficulties which may arise. Indeed, I can see one hon. Gentleman opposite whose mind is immediately exercised in contemplating the possibilities.

I have a great deal of sympathy with the general objective of the hon. Member for Dartford (Mr. Dodds), but I ask him not to use such comprehensive expressions as: … not derived from vegetable or animal sources …. That would seem to condemn substances which are not derived from vegetable or animal sources. It would seem by implication to approve substances which do come within those categories. Our difficulty is that some of the substances upon which we are keeping a careful watch are substances within those categories.

When we reach Clause 5, which deals with labelling requirements, I will seek to give such assurance as I can, but I hope the hon. Gentleman will avoid this omnibus classification of substances, with animal and vegetable on the one hand and those not in that category, or mineral, on the other, and with requirements in respect of one group and not in respect of the other. That generalised omnibus approach to the problem would lead to the wrong result. In considering labelling requirements, I urge the hon. Gentleman not to press for a classification which does not fit in with the facts about the harmful character of substances.

Mr. Dodds

I am pleased that the hon. Gentleman pointed out that I might have given a wrong impression. I do not seek to say that all substances derived from mineral or animal sources are fit for human food. There is need to give special attention to the question of substances from mineral sources. That was the main point. I am pleased that the hon. Gentleman is prepared to consider the matter.

Dr. Hill

Quite apart from the considerations that I have mentioned, I hope that we shall not require the naming of substances on labels in a long and complete list, willy-nilly—salt, baking powder, and so on. We want labels not to be a long miscellany of chemical and other substances that are included because those ingredients are there. We want labels to be something that the customer can understand, something drawing attention to what the customer rightly and properly should know.

Again, I urge that we should not decide on the basis of this broad classification the list of substances to be included in the labels for fear of lumbering them up with a mass of unimportant information.

Mr. Mitchison

Perhaps I misunderstood the hon. Gentleman. I thought that he recognised that there was substance in the argument which was put forward and that his objection was to the language, which he found too sweeping. Is he prepared to give an undertaking that he will introduce an Amendment to meet the point the substance which I understood him to recognise?

Dr. Hill

No. I said that when we came to Clause 5 we would be considering the labelling of food and drugs and that issues about labelling could be raised. In general, it would be wrong to have this omnibus classification of substances. Labelling requirements should be considered on their merits in relation to the public interest and not in conformity with the headings mineral, animal and vegetable.

Mr. Willey

I am obliged to the Parliamentary Secretary for what he has said. I appreciate the arguments he has made against me and I say in my own

defence that if we had succeeded with these Amendments we should have retired to the Library tomorrow morning to draft a new Clause to meet the point. We are satisfied with the assurance which has been given. In the circumstances, I do not intend to move the Amendments in lines 29, 32 and 33. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Willey

I beg to move, in page 2, line 34, at the end, to insert: and that such person had taken all reasonable steps to bring the notice to the attention of the purchaser. We regard this as an Amendment of substance. It is all very well to provide the mechanical safeguard of the notice, but we should also place the onus on the person selling a commodity to call attention to the notice. The Parliamentary Secretary has made it clear that he cannot commit the Government. Because of that I must advise my hon. and right hon. Friends to divide the Committee so that we can express our point of view about what we regard as an essential requirement to safeguard the consumer.

Mr. F. Harris

What is the good of trying to make laws which cannot be physically carried out?

Mr. Willey

That kind of remark is a serious and unwarranted reflection upon our courts of law.

Mr. Harris

The people cannot carry out the requirements.

Mr. Willey

There are no courts better fitted to interpret the meaning of the word "reasonable" than are our courts of justice. This is the sort of point which can be wisely left to the good sense of our courts.

Question put, "That those words be there inserted."

The Committee divided: Ayes, 214 Noes, 234.

Division No. 217.] AYES [6.28 p.m.
Acland, Sir Richard Beattie, J. Braddock, Mrs. Elizabeth
Albu, A. H. Bellenger, Rt. Hon. F. J. Brockway, A. F.
Allen, Arthur (Bosworth) Bence, C. R. Brook, Dryden (Halifax)
Anderson, Frank (Whitehaven) Beswick, F. Broughton, Dr. A. D. D
Attlee, Rt. Hon. C. R. Blackburn, F. Brown, Rt. Hon. George (Belper)
Awbery, S. S. Blenkinsop, A. Brown, Thomas (Ince)
Bacon, Miss Alice Boardman, H. Burke, W. A.
Balfour, A. Bottomley, Rt. Hon. A. G Burton, Miss F. E.
Barnes, Rt. Hon. A. J Bowden, H. W. Butler, Herbert (Hackney, S.)
Bartley, P. Bowles, F. G. Callaghan, L. J.
Carmichael, J. Jeger, George (Goole) Richards, R.
Champion, A. J Jeger, Mrs. Lena Robens, Rt. Hon. A
Chapman, W. D Jones, Rt. Hon. A. Creech Roberts, Albert (Normanton)
Chetwynd, G. R Jones, David (Hartlepool) Roberts, Goronwy (Caernarvon)
Clunie, J. Jones, T. W. (Merioneth) Rogers, George (Kensington. N.)
Collick, P. H Keenan, W. Ross, William
Collins, V. J Kenyon, C. Shackleton, E. A. A
Cove, W. G. Key, Rt. Hon. C. W Short, E. W
Craddock, George (Bradford, S.) Kinley, J. Shurmar, P. L. E.
Grossman, R. H. S Lawson, G. M. Silverman, Julius (Erdington)
Daines, P. Lee, Frederick (Newton) Silverman, Sydney (Nelson)
Dalton, Rt. Hon. H. Lever, Leslie (Ardwick) Simmons, C. J. (Brierley Hill)
Darling, George (Hillsborough) Lipton, Lt.-Col. M Skeffington, A. M.
Davies, Ernest (Enfield, E.) Logan, D. G Slater, Mrs. H. (Stoke-on-Trent)
Davies, Harold (Leek) MacColl, J. E Slater, J. (Durham, Sedgefield)
Davies, Stephen (Merthyr) McGhee, H. G Smith, Norman (Nottingham, S)
de Freitas, Geoffrey McInnes, J. Sorensen, R. W
Deer, G. McKay, John (Wallsend) Sparks, J. A
Delargy, H. J. McLeavy, F. Steele, T.
Dodds, N. N. Mann, Mrs. Jean Stewart, Michael (Fulham, E.)
Dugdale, Rt. Hon. John (W. Bromwich) Manuel, A. C Strachey, Rt. Hon. J.
Edwards, Rt. Hon. John (Brighouse) Marquand, Rt. Hon. H A Strauss, Rt. Hon. George (Vauxhall)
Edwards, Rt. Hon. Ness (Caerphilly) Mason, Roy Stross, Dr. Barnett
Edwards, W. J. (Stepney) Mayhem, C. P. Summerskill, Rt Hon. E
Evans, Stanley (Wednesbury) Mellish, R. J. Swingler, S. T
Fienburgh, W Messer, Sir F. Sylvester, G. O
Finch, H. J. Mitchison, G. R Taylor, Bernard (Mansfield)
Fletcher, Eric (Islington, E.) Monslow, W. Taylor, John (West Lothian)
Follick, M. Moody, A. S. Thomas, Iorwerth (Rhondda, W)
Foot, M. M. Morgan, Dr H. B W Thomas, Ivor Owen (Wrekin)
Forman, J. C. Morley, R. Thomson, George (Dundee, E.)
Fraser, Thomas (Hamilton) Morris, Percy (Swansea, W.) Timmons, J.
Freeman, Peter (Newport) Morrison, Rt. Hon H (Lewisham, S) Tomney, F.
Gibson, C. W. Mort, D. L. Ungoed-Thomas, Sir Lynn
Gordon Walker, Rt. Hon P C Moyle, A. Usborne, H. C
Greenwood Anthony Mulley, F. W Viant, S. P.
Grenfell, Rt. Hon. D. R Murray, J. D Warbey, W. N
Grey, C. F. Nally, W. Watkins, T. E
Griffiths, David (Rother Valley) Neal, Harold (Bolsover) Webb, Rt. Hon. M. (Bradford, S.)
Griffiths, Rt. Hon. James (Llanelly) Noel-Baker, Rt. Hon P J Weitzman, D.
Hale, Leslie Oldfield, W. H Wells, Percy (Faversham)
Hall, Rt. Hon. Glenvil (Colne Valley) Oliver, G. H West, D. G.
Hall, John T. (Gateshead, W.) Oswald, T. Wheeldon, W. E
Hamilton, W. W. Padley, W. E White, Mrs. Eirene (E. Flint)
Hardy, E. A. Paling, Rt. Hon. W. (Dearne Valley) Whiteley, Rt. Hon W
Hargreaves, A Paling, Will T. (Dewsbury) Wilkins, W. A
Harrison, J. (Nottingham, E.) Pannell, Charles Willey, F. T.
Hasting, S. Pargiter, G. A Williams, David (Neath)
Hayman, F. H. Parker, J Williams, Ronald (Wigan)
Henderson, Rt. Hon. A. (Rowley Regis) Paton, J. Williams, W. R. (Droylsden)
Herbison, Miss M. Pearson, A Williams, W. T. (Hammersmith, S.)
Hewitson, Capt. M Peart, T. F. Willis, E. G.
Hobson, C. R Plummer, Sir Leslie Wilson, Rt. Hon Harold (Hayton)
Holman, P. Popplewell, E. Winterbottom, Ian (Nottingham, C.)
Hoy, J. H. Porter, G. Woodburn, Rt. Hon A
Hubbard, T. F. Price, J. T. (Westhoughton) Wyatt, W. L
Hudson, James (Eating, N.) Proctor, W. T Yates, V. F.
Hughes, Cledwyn (Anglesey) Pryde, D. J. Younger, Rt. Hon. K
Hughes, Emrys (S. Ayrshire) Rankin, John
Hynd, H. (Accrington) Reeves, J. TELLERS FOR THE AYES
Irving, W. J. (Wood Green) Reid, Thomas (Swindon) Mr. James Johnson and
Isaacs, Rt. Hon. G. A. Reid, William (Camlachie) Mr. Holmes.
Jay, Rt. Hon. D. P T Rhodes, H
Allan, R. A. (Paddington, S.) Bishop, F. P. Cole, Norman
Alport, C. J. M. Boothby, Sir R. J G Colegate, W. A.
Amery, Julian (Preston, N.) Bossom, Sir A. C. Conant, Maj. Sir Roger
Amory, Rt. Hon. Heathcoat (Tiverton) Bowen, E. R Cooper-Key, E. M.
Anstruther-Gray, Major W. J Boyd-Carpenter, Rt. Hon J A Craddock, Beresford (Spelthorne)
Ashton, H. (Chelmsford) Boyle, Sir Edward Crookshank, Capt. Rt. Hon. H. F C
Assheton, Rt. Hon. R. (Blackburn, W.) Braithwaite, Sir Gurney Crosthwaite-Eyre, Col. O E
Baldock, Lt.-Cmdr J M Brooman-White, R. C. Crouch, R. F.
Baldwin, A. E Browne, Jack (Govan) Crowdar, Sir John (Finekley)
Banks, Col. C Buchan-Hepburn, Rt. Hon. P G T Deedes, W. F.
Barber, Anthony Bullard, D. G. Dodds-Parker, A. D
Barlow, Sir John Bullus, Wing Commander E. E. Donaldson, Cmdr C E. McA
Baxter, Sir Beverley Burden, F. F. A. Doughty, C. J. A.
Beach, Maj. Hicks Butcher, Sir Herbert Dugdale, Rt. Hon. Sir T (Richmond)
Bell, Philip (Bolton, E.) Campbell, Sir David Duncan, Capt J. A. L.
Bennett, F. M. (Reading, N.) Cary, Sir Robert Duthie, W. S.
Bevins, J. R. (Toxteth) Clarke, Col. Ralph (East Grinstead) Elliot, Rt. Hon. W. E.
Birch, Nigel Clarke, Brig. Terence (Portsmouth, W.) Erroll, F. J.
Fell, A. Llewellyn, D. T. Robertson, Sir David
Finlay, Graeme Lloyd, Maj. Sir Guy (Renfrew, E.) Robinson, Sir Roland (Blackpool, S.)
Fisher, Nigel Lloyd, Rt. Hon. Selwyn (Wirral) Robson-Brown, W.
Fleetwood-Hesketh, R. F. Lockwood, Lt.-Col. J. C. Roper, Sir Harold
Fletcher-Cooke, C. Longden, Gilbert Ropner, Col. Sir Leonard
Ford, Mrs. Patricia Lucas, Sir Jocelyn (Portsmouth, S.) Russell, R. S.
Fort, R. Lucas, P. B. (Brentford) Sandys, Rt. Hon. D.
Fraser, Hon. Hugh (Stone) Lucas-Tooth, Sir Hugh Savory, Prof. Sir Douglas
Fraser, Sir Ian (Morecambe & Lonsdale) McAdden, S. J. Schofield, Lt.-Col. W.
Galbraith, Rt. Hon. T. D. (Pollok) McCorquodale, Rt. Hon. M. S. Scott, R. Donald
Galbraith, T. G. D. (Hillhead) Macdonald, Sir Peter Scott-Miller, Cmdr. R.
Garner-Evans, E. H. McKibbin, A. J. Shepherd, William
Glover, D. Mackie, J. H. (Galloway) Simon, J. E. S. (Middlesbrough, W.)
Gomme-Duncan, Col. A. Maclay, Rt. Hon. John Smithers, Peter (Winchester)
Gower, H. R. Macleod, Rt. Hon. Iain (Enfield, W.) Smyth, Brig. J. G. (Norwood)
Graham, Sir Fergus MacLeod, John (Ross and Cromarty) Soames, Capt. C.
Gridley, Sir Arnold Macmillan, Rt. Hon, Harold (Bromley) Spearman, A. C. M.
Grimond, J. Maitland, Cmdr. J. F. W. (Horncastle) Speir, R. M.
Grimston, Hon. John (St. Albans) Maitland, Patrick (Lanark) Spens, Rt. Hon. Sir P. (Kensington, S.)
Grimston, Sir Robert (Westbury) Marlowe, A. A. H. Stanley, Capt. Hon. Richard
Hall, John (Wycombe) Marples, A. E. Stevens, Geoffrey
Harden, J. R. E. Marshall, Douglas (Bodmin) Steward, W. A. (Woolwich, W.)
Hare, Hon. J. H. Maude, Angus Stewart, Henderson (Fife, E.)
Maudling, R. Stoddart-Scott, Col. M.
Harris, Frederic (Croydon, N.) Maydon, Lt.-Comdr. S. L. C. Storey, S.
Harrison, Col. J. H. (Eye) Medlicott, Brig. F. Strauss, Henry (Norwich, S.)
Harvey, Air Cdre. A. V. (Macclesfield) Mellor, Sir John Studholme, H. G.
Harvey, Ian (Harrow, E.) Molson, A. H. E. Summers, G. S.
Harvie-Watt, Sir George Monckton, Rt. Hon. Sir Walter Sutcliffe, Sir Harold
Heald, Rt. Hon. Sir Lionel Moore, Sir Thomas Taylor, Sir Charles (Eastbourne)
Heath, Edward Morrison, John (Salisbury) Thomas, Leslie (Canterbury)
Higgs, J. M. C. Nabarro, G. D. N. Thomas, P. J. M. (Conway)
Hill, Dr. Charles (Luton) Neave, Airey Thorneycroft, Rt. Hn. Peter (Monmouth)
Hinchingbrooke, Viscount Nicholls, Harmar Thornton-Kemsley, Col. C. N.
Hirst, Geoffrey Nicolson, Nigel (Bournemouth, E.) Tilney, John
Holland-Martin, C. J. Nield, Basil (Chester) Turner, H. F. L.
Hope, Lord John Noble, Comdr. A. H. P. Turton, R. H.
Horsburgh, Rt. Hon. Florence Nugent, G. R. H. Tweedsmuir, Lady
Howard, Gerald (Cambridgeshire) Nutting, Rt. Hon. Anthony Vane, W. M. F.
Hudson, Sir Austin (Lewisham, N.) O'Neill, Hon. Phelim (Co. Antrim, N.) Vaughan-Morgan, J. K.
Hudson, W. R. A. (Hull, N.) Orr, Capt. L. P. S. Vesper, D. F.
Hughes-Hallet, Vice-Admiral J. Page, R. G. Wade, D. W.
Hulbert, Wing Cmdr. N. J. Partridge, E. Wakefield, Edward (Derbyshire, W.)
Hurd, A. R. Peake, Rt. Hon. O. Walker-Smith, D. C.
Hutchison, Sir Ian Clark (E'b'rgh, W.) Perkins, Sir Robert Wall, Major Patrick
Hutchison, James (Scotstoun) Peto, Brig. C. H. M. Ward, Hon. George (Worcester)
Hyde, Lt.-Col. H. M. Peyton, J. W. W. Ward, Miss I. (Tynemouth)
Hylton-Foster, Sir H. B. H. Pickthorn, K. W. M. Waterhouse, Capt. Rt. Hon. C.
Iremonger, T. L. Pitman, I. J. Webbe, Sir H. (London & Westminster)
Jenkins, Robert (Dulwich) Pitt, Miss E. M. Wellwood, W.
Johnson, Eric (Blackley) Powell, J. Enoch Williams, Rt. Hon. Charles (Torquay)
Joynson-Hicks, Hon. L. W. Price, Henry (Lewisham, W.) Williams, Gerald (Tonbridge)
Kaberry, D. Prior-Palmer, Brig. O. L. Williams, Paul (Sunderland, S.)
Keeling, Sir Edward Profumo, J. D. Williams, R. Dudley (Exeter)
Kerby, Capt. H. B. Raikes, Sir Victor Wills, G.
Kerr, H. W. Ramsden, J. E. Wilson, Geoffrey (Truro)
Lambert, Hon. G. Rayner, Brig. R. Wood, Hon. R.
Lancaster, Col. C. G. Redmayne, M.
Leather, E. H. C. Rees-Davies, W. R. TELLERS FOR THE NOES:
Legge-Bourke, Maj. E. A. H. Remnant, Hon. P. Mr. Richard Thompson and
Legh, Hon. Peter (Petersfield) Renton, D. L. M. Sir Cedric Drewe.
Linstead, Sir H. N. Ridsdale, J. E.

Question put, and agreed to.

Mr. Mitchison

I beg to move, in page 2, line 41, at the end, to insert: (3) Proceedings shall not be taken under section three of the principal Act in respect of such a breach of condition as is mentioned in sections twenty-five and twenty-six of the Food and Drugs (Milk, Dairies and Artificial Cream) Act, 1950. I am afraid that this is a lawyer's Amendment in the worst sense of the word and I move it as a lawyer and not as a secret dairyman. It concerns dairymen. In 1950, the Food and Drugs (Milk, Dairies and Artificial Cream) Act provided certain penalties for dairymen who infringed their licences in the particular matter of selling designated milk wrongly—that is to say, selling milk which was not up to the designated standard. Previously, the only sanction had been the withdrawal of the licence.

When the 1950 Act was before the House, it was quite clearly indicated by my right hon. Friend the Member for Fulham, West (Dr. Summerskill)—and it was also indicated in another place—that these were new penalties and were the appropriate penalties for this offence.

The penalties involved, first of all, a warning—a statutory matter that occurs in the 1950 Act—and, secondly, fines increasing according to the repetition of the offence. Considerable stress was placed on this at the time, and my right hon. Friend reassured the House that there was no undue severity in the matter. On 21st February, 1949, she said that the Section which is now before the Committee … provides that a warning notice should be given for the first breach of the conditions and that only when the vendor has been guilty of a second offence within 12 months of the warning may he be the subject of proceedings."—[OFFICIAL REPORT, 21st February, 1949; Vol. 461, c. 1611.] That was referred to by a number of other hon. Members, and I am sure that the Committee will take it from me that it was not only on that occasion, but on others. too.

In 1951, there was a prosecution. apparently in Lancashire, under Section (3) of the 1938 Act—that is, the principal Act that we are considering today—for something which would have been an offence to be dealt with under the Section of the 1950 Act which I have just mentioned, and the particular offence was that of selling a bottle of milk not of the quality demanded, because such milk failed to satisfy the tests for pasteurised milk.

It was, in fact, exactly what had been contemplated when the 1950 Act was introduced and for which these penalties had been prescribed. There was a conviction under Section (3) of the 1938 Act, and, of course, I am not saying that it was wrong, but it was certainly not what had been intended when the House was considering the matter in 1950.

The matter does not end there, because if we turn to the Sections of the 1950 Act to which I have been referring, we find that under Section 26, which is the second of them, a breach of the conditions, which was an offence under the 1938 Act, shall not render the holder of the licence guilty of an offence under the last foregoing section."— that is to say, if he is liable to any punishment by or under any enactment other than that Section.

The result is that if there is a breach of the licence by the sale of pasteurised milk which is not up to standard, in spite of what was said in the 1950 Act and what was undoubtedly the intention of the House at the time, a dairyman cannot be prosecuted under that Act. He has to be prosecuted under the 1938 Act, because the offence can be punished under that Act, as appeared in the case of this prosecution in 1951. The result, therefore, is that the original penalty of having a licence withdrawn having been very properly stiffened in 1950, subject to certain protection which was fully intended and discussed at the time, that protection now proves quite nugatory, and, in fact, the penalty intended in 1950 is no longer appropriate.

This Amendment will have the effect that a dairyman could no longer be punished under Section 3 of the principal Act for this type of offence punishable under two Sections of the 1950 Act, and, therefore, the Amendment would restore what was undoubtedly the intention of the House at the time the 1950 Act was passed. If I may say so with very great respect to my right hon. Friend, it would also restore in this matter her political honour and the political honour of this House as well. A promise was made here in 1950, and safeguards were given, but a subsequent decision, which nobody foresaw, made these safeguards entirely nugatory and imposed a penalty which it was not intended should be imposed in. this particular case at the time. There it is. I hope the Amendment will commend itself to the Committee as only fair. I see hon. Gentlemen opposite looking anxiously at various books of reference. I hope I shall get their support and that of the Committee as a whole.

6.45 p.m.

Dr. Hill

I am sure that the Committee is grateful to the hon. and learned Member for Kettering (Mr. Mitchison) for his clear exposition of what he calls a lawyer's point, but the hon. and learned Gentleman may have omitted one aspect of the matter. As he put it, the law requires that, in connection with the offences listed in the Fourth Schedule of the 1950 Act, if there can be a prosecution under any other enactment, it must take place.

The particular point at issue is this. The possible offences listed in the Fourth Schedule of the 1950 Act include offences in regard to the keeping of records and the making of proper tests in connection with milk. In the case of offences of fraud, where the dairyman has mixed pasteurised and non-pasteurised milk together and called it pasteurised milk, the law now requires that that man shall be prosecuted for fraud under Section 3 of the 1938 Act, which deals with fraud. I suggest that it is, on the whole, a desirable thing that all persons who are accused of fraud should be accused under the same Section, and that dairymen in non-specified areas as well as in specified areas should be treated alike for the purpose of this Section, because the 1950 Act refers to dairymen in unspecified areas.

If we prevent these prosecutions for fraud or fail to require them, we shall be in this position. Under the 1950 Act, a man cannot be prosecuted for the first offence. He must have done it twice within 12 months in order to be prosecuted under that Section, so that I suggest that, bearing in mind that there is no such trial run for fraud under Section 3 of the 1938 Act, the Committee should think twice before providing that a fraudulent offender cannot be prosecuted in respect of the first offence.

I admit straight away that there is an argument on the other side, and it is this. If the prosecution takes place under the fraud provision—Section 3 of the 1938 Act—there cannot be in respect of that prosecution termination of the licence. If, on the other hand, there are two offences and a successful prosecution is made under the 1950 Act, there can be termination of the licence. But I suspect that the single offence of fraud that comes within the 1938 Act is unlikely to be the only offence, and, if there is any other offence under any other section or under the Fourth Schedule of the 1950 Act, the offender, provided that he has done it twice within 12 months, is liable to have his licence removed.

I have had the most unusual experience of believing the right hon. Lady to be right in this matter. To do what the hon. and learned Gentleman suggests would mean that in a specified area a dairyman could not be, or need not necessarily be, prosecuted for fraud, whereas a dairyman in an unspecified area doing the same thing could be prosecuted for fraud. Bearing in mind that, under Section 3 of the 1938 Act, there is no trial run for a fraudulent offence, I suggest that there should not be any trial run in the Bill for such a fraudulent offence. I trust that the Committee will leave the position as it is, and will not accept the Amendment.

Mr. Mitchison

It is true that Section 3 of the principal Act covers fraud in the ordinary sense of the word, but it also covers the case where pasteurised milk is not up to the required standard. The difficulty is that we cannot deal with the matter under the 1938 Act in the way which the House of Commons intended. If the Minister wants to limit the protection to certain cases and to exclude the fraudulent ones, I shall be only too happy to accept his assurance that he will look into the matter on those lines. The trouble at present is that the man who sells the wrong kind of milk because it is not up to the standard cannot be dealt with as the Act intended he should he dealt with. There is no element of fraud in the Lancaster prosecution, so far as I know.

Dr. Hill

Our contention is that with Section 3 remaining as it is, anybody who offends against the Section, whether dairyman or otherwise, in a specified area or otherwise, should be dealt with under that Section. That is the situation which now obtains. I appreciate the point of the hon. and learned Gentleman that there may be cases which could be brought within the ambit of the Section which are not fraudulent in the sense that we are discussing. Let us assume that in such marginal cases the local authority will act sensibly. Let us refrain from making a change which would have grave consequences in the sense of excluding a particular category of dairyman, not even the whole of the dairymen, from the operation of a general Clause dealing with fraudulent offences.

Mr. Michael Higgs (Bromsgrove)

I and some of my hon. Friends have been concerned in the same way as is the hon. and learned Member for Kettering (Mr. Mitchison), and we considered the possibility of an Amendment to the same effect as the one we are now discussing. After studying the matter, we came to the view that my hon. Friend the Parliamentary Secretary is right, though it may be that stronger assurances than he has so far been able to give us might be desirable. As I understand the 1950 Act, it did not purport to deal with transactions of sale. It did not fix the point of an offence at the sale of milk to a purchaser. There was nothing in Section 25 of the 1950 Act, or of the Fourth Schedule thereto, which made it an offence at the moment when milk was sold. That Act was aimed at what I may broadly describe as the drill to be followed in the dairy. It laid down the procedure to be followed in the dairy and provided the conditions in the licence to deal with the matter. It dealt also with the efficiency of machines, the keeping of records and the keeping of two different kinds of milk separately in the dairy.

The 1938 Act deals with the offence which takes place when a sale is made to the detriment of the purchaser. It is possible that where there has been a breakdown in the drill in the dairy or in the machinery of the dairy, a sale may follow which is to the detriment of the purchaser. To that extent it is possible to say that if, owing to the failure of procedure in the dairy, different kinds of milk such as pasteurised and unpasteurised get mixed, if there is a subsequent sale to a purchaser and the mistake is not found out until there is a sale to a purchaser, and if a sample is taken, that is a transgression which might be punished under either Act, either as bad drill in the dairy under the 1950 Act, or as a sale to the detriment of the purchaser under the 1938 Act.

It is in that class of case that the difficulty arises. I do not think that anyone in the Committee would wish to see a dairyman who deliberately mixed two pints of milk, tried under the 1950 Act. It would be impossible to prosecute where faulty dairy procedure took place and was found out before a sale. No one would suggest that that offence could be prosecuted under the 1938 Act. It must be prosecuted under the 1950 Act.

The difficulty arises where a sale takes place and there is a possible prosecution under the 1938 Act, but because the defect was the result of bad dairy drill it might also be prosecuted under the 1950 Act. Surely the commonsense thing is to say that where it is an innocent matter such as a mere fault in the machines which nobody could have prevented, or where it is carelessness or oversight, the 1950 Act should apply. One was intended to have one free bite every year and the safeguards in the 1950 Act apply, as well as the severer consequence of repeated offences in the form of removal of licence.

In a case of that sort, the 1950 Act should be used and we would all agree that that would be reasonable. Where there has been deliberate fraud, and a dairyman has deliberately mixed two kinds of milk, pasteurised and unpasteurised, and sold them as pasteurised, anyone would agree that it should be dealt with under the 1938 Act, as was the Lancaster case.

My hon. Friend seemed to be giving some kind of assurance which probably cannot be defined in the statute but which one can see in practice and which would be followed as far as possible. We are rather in the hands of the food and drug authorities. Perhaps my hon. Friend could draw attention to the apprehensions which the dairymen have had about the consequences of the Lancaster case and try to secure that the dividing line which I have tried to explain to the Committee should be followed in practice by food and drug authorities. Then we might all feel satisfied that the right conclusion had been reached in this matter.

Mr. Mitchison

I appeal to the Parliamentary Secretary to look at this point of the cases where there should be prosecution under the 1950 Act and not under the 1938 Act. It is a very subtle line, so subtle that I noticed that when my right hon. Friend was making the speech to which I referred a few minutes ago she used the words, referring to the then state of the law, "If a vendor infringes the condition." She treated the matter at the time, and no doubt the House was treating it too, as one where the actual process of sale and the conduct of operations in the dairy were so closely associated that there was no material difference.

I do not want to protect the fraudulent milk dealer. What I am after is a different type of case altogether, where there has been a failure in the standard and where a man may be liable under Section 3. Perhaps the Parliamentary Secretary would be good enough to tell me that he will look into the matter with regard to that type of case only, and I should then be more than satisfied and would at once ask leave to withdraw the Amendment. Perhaps the hon. Gentleman would meet me to that extent. I am not asking for an undertaking.

Dr. Hill

I am sure that the hon. and learned Gentleman would appreciate an undertaking to examine this matter in relation to the narrow, restricted circumstances which have been so well described by my hon. Friend the Member for Bromsgrove (Mr. Higgs). I will gladly look at the point. I am sure that neither the hon. and learned Gentleman nor my hon. Friend are suggesting that the Minister should tell local authorities what to do. Within those limitations I will look at the point, provided that the hon. and learned Gentleman does not seek the main change which his Amendment sets out.

Mr. Mitchison

I accept that entirely, and I would not go beyond that point. Having regard to what has been said, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.0. p.m.

Mr. I. J. Pitman (Bath)

I beg to move, in page 2, line 41, at the end, to insert: (3) In proceedings under the said section three it shall be a defence to prove that the food or drug in question was lawfully sold under a trade mark in response to a demand made by the purchaser with reference to the trade mark and was not inferior in nature, substance or quality to the food or drug normally sold under the trade mark: Provided that—

  1. (a) the trade mark as applied is used to indicate a connection in the course of trade between the food or drug and the person who is the proprietor of the trade mark or between the food or drug and a person who is registered under section twenty-eight of the Trade Marks Act, 1938, as a registered user of the trade mark; and
  2. (b) the person who is the proprietor of the trade mark is the same person as, or a successor in title of, the proprietor on the day this Act is passed.
The origin of this Amendment lies in the fact that in Clause 2 (3) we are repealing paragraph (5) of Section 4 of the 1938 Act. That Section states that it shall be a defence to prove that the article supplied was a proprietary medicine and was supplied in response to a demand for that medicine. Under the Bill at present, new prosecutions by local authorities in the case of medicines will be possible under Section 3 of the 1938 Act which were not possible before.

The first question I wish to ask the Parliamentary Secretary is whether the protection given to the public and to the retailer under the 1938 Act was undesirable, and, if there were any such undesirable cases, whether such undesirable cases were cases which would not now be covered by other parts of this Bill? When this Bill was introduced in another place, the repeal of Section 4 (5) was not provided for in it, and presumably, therefore, it was not thought desirable at that stage that there should be this fresh number of prosecutions of the retailer.

The Amendment, however, was moved in another place under the complete misconception that the trade accepted the repeal of that Section. In point of fact, that is the very opposite, and, therefore, it would be arguable that it would be justifiable to seek to amend the Bill by the deletion of the Amendment which was inserted in the other place. I speak for the Joint Committee of the Proprietory Association of Great Britain, the Association of British Pharmaceutical Industry, the National Pharmaceutical Union, the Company Chemists Association and the National Federation of Grocers and the Provision Dealers' Association.

These bodies do not press to go as far as all that, and this Amendment does not go as far as the 1938 Act. It adopts a middle course, or what one might call a golden mean between the 1938 Act and this Bill, because, if this Amendment is accepted, it will be a defence for the retailer if he is prosecuted that the public asked for what the public got, provided that the product was not inferior in nature, substance or quality to the food or drug normally sold under the trade mark. I wish to emphasise the point that the Amendment will not protect inferior goods, because that is ruled out under the Amendment. Equally, it will not protect the misleading goods because they are sold under a misleading trade name. For instance, if there were a Pitman's brand of aspirin which did not contain any aspirin at all, it would not be a defence under this Amendment, because, in point of fact, the prosecution would take place under Clause 5 owing to the fact that the whole thing would be misleading in itself.

That leaves only what are called "ethical" foods and medicines, and medicines within that ethical field which are by necessity superior by nature, substance and quality. May I give the Committee an example, first, from the past, and, secondly, an imaginary example from the future? In the past, we have had the substance known as chlorodyne, and in the future it might well be possible for a manufacturing chemist, after a great deal of research and development, to discover and market a most beneficial aureomycin whooping cough mixture. I may postulate that both products are ethical because it is only if a commodity is so beneficial that the authorities approve it and themselves copy it using the same name that the issue under this Amendment can arise at all.

It happens, and has happened, in the case of chlorodyne that the substance is considered so beneficial that it is admitted to the British Pharmacopoeia or to the British Pharmaceutical Codex with the same name. When it is so introduced, two differences occur. The first is a small difference of nomenclature. There are now two chlorodynes, one a Dr. Collis Browne's chlorodyne and another bearing the same name which is the official one in the British Pharmacopoeia. There is also a slight difference in substance. A variation is made in the formula so that there are now two versions of substance.

The Minister will no doubt turn round and say that there is no doubt that those two substances, notwithstanding their variations, are, in point of fact, the same substance. If he says that, then I think that is all the more reason for accepting this Amendment, because it will permit such minor, but only such minor, variations in the substance without danger of prosecution to the original.

If there were a substantial variation made subsequently in the substance of the original product, then there would not be protection because the words normally sold under the trade mark. would prevent such a major change. Similarly, I think that the trade mark people would not allow the continuation of the trade mark for the sale of a substance which had been significantly altered.

However, there will be unless the Amendment is accepted a debatable point whether two versions of a substance are the same substance. Since they are different substances, then it is possible for the local authority which is going to prosecute to suppose that the official one is the superior substance, and that the proprietary article, the manufacturers of which have done all the work in that field, is by inference an inferior article, which we know not to be the case.

All prosecutions in this field are vexatious. They take up time and cost money, and they take up the time of the courts, too. Do not let us forget that there are about 2,000 local authorities who will be in a position to instigate prosecutions under this Bill. It is very debatable whether we do not allow the Executive to exercise its discretion too much in refraining from prosecution. In other words, I think that there is a lot to be said for the fact that we give the Executive too many powers and accept on trust that it will exercise its ability to prosecute with discretion. If that is debatable in the case of Whitehall, how much more debatable is it when we have proliferated up and down the country literally thousands of local authorities upon whose discretion the whole question of the administration of this Bill will depend?

It is bad in itself, in this matter, to have the law indefinite, and if we can make it definite let us do so. It is also very discouraging to research and to the enormous capital required for the developing of any new drug of this character to have the fear that when all that money has been spent it may be found impracticable, after making the manufacture popular, to sell it in competition with the official imitation.

Finally, it is unfair to the public. After all, when the public come in and demand Dr. Collis Browne's chlorodyne, they are demanding something in which they believe because they have proved their faith in it and like to be allowed to get it without the retailer being prosecuted for supplying that for which they ask. It would be sound to discourage prosecutions by these 2,000 authorities and, if they do prosecute, it would save the time of the court to have the matter clearly covered by the Bill.

Sir Ian Fraser (Morecambe and Lonsdale)

I declare an interest in this matter, being a director of certain companies which manufacture and distribute branded articles or articles which are sold subject to registered trade marks. I am interested, not only for shareholders who deserve consideration, but also for very large numbers of people employed in making and distributing these products and who are very interested in the well-being of the business which many of them have spent most of their lifetime to build up.

It is a pity that the Government which passed, in this very Parliament, the Merchandise Marks Act should include in this Bill further Clauses which a great many people in the trades concerned consider vexatious, embarrassing and harassing. However, if further regulation of these profitable, popular, and I think useful, businesses must be made, then I beg of my hon. and right hon. Friends on the Front Bench to listen sympathetically and consider whether they cannot meet us by accepting this Amendment or, at any rate, by finding some words which would help to assuage the sore feelings of many of the people for whom I speak.

We do not want to multiply inquiries, prosecutions and defences. Let us remember that all these ancillary products of legislation have to be paid for out of the money made by industry. Were it not for these successful industries there would not be the taxes to pay for them at all. Branded articles, in themselves, are valuable not only to the person owning the brands and trade marks but to the public, to whom they give certainty of quality and repetition of quality in which the public have faith.

7.15 p.m.

Those are things which should be encouraged, and not discouraged by vexatious prosecutions. An established trade mark is of value to the person who owns it and to the people who have faith in it. It ought to be a piece of property which, if reasonably used, is respected by the law and not subject to whimsical, arbitrary—and sometimes malicious—attack by Tom, Dick and Harry, whether he be in Whitehall or town hall.

It is for those general reasons that I ask the Government to consider seriously the case which is now being put to them. The explanations given by my hon. Friend the Member for Bath (Mr. Pitman) are within the recollection of the Committee and it would be tedious to repeat them. I will only say that in our judgment—and we have been, we think, well advised by experienced people and by learned counsel—the Bill as it stands does allow a great many people to prosecute responsible and worthy companies which are rendering a public service, for faults which, as my hon. Friend has said, are not really faults at all but a necessary part of the process of making and popularising good products.

If one is responsible for making and popularising a product, and making it so well that authority wishes to put the formula in an official code, it seems grossly unfair that that fact should lay one open to a prosecution which might stop one selling the very thing which has been produced to benefit the people as well as oneself. I do not pretend that the companies which I represent have been abused in this matter but they, as well as every other section, deserve fair treatment and reasonable conditions in which to work in order to make money and to sustain the executive of the country.

The whole of the trade concerned in making these goods which are the subject of trade marks and brands, manufacturers and wholesalers in both the drug and food businesses and all the grocers in Britain—and there are 100,000 of them—are all represented in the plea which we are making to the Government. I earnestly hope that my hon. and right hon. Friends will listen.

Dr. Hill

I confess that I am a little puzzled by the statements of the misapprehensions made by my hon. Friends who have spoken to this Amendment. This clearly derives from the omission of the defence in Section 4 (5) of the 1938 Act. There have been some discussions with the pharmaceutical trade on the subject. That trade has never maintained that, where an article the subject of trade mark has deteriorated, say in store, it should not be possible to prosecute under the appropriate Section. It has never contended that and my hon. Friend does not raise the matter here.

If that is not raised, then what he seeks to ensure is that, where the substance is bought in response to a demand made by the purchaser in reference to the trade mark, that should be a defence. But there is no offence. If, in fact, the sale is made in response to a demand for so-and-so's pills or so-and-so's chlorodyne—and I wish to avoid mentioning names—there is no offence. I can appreciate the point that, where a substance is in the British Pharmacopœia and at the same time is sold separately it will then be so-and-so's cough medicine and the corresponding name for it in the Pharmacopœia. Again, if the customer asks for so-and-so's cough medicine and it is supplied there is no offence.

In any case, the Amendment does not deal with the difficulty of substances similarly named outside and inside the Pharmacopœia. I can assure my hon. Friend that if someone asks for so-and-so's preparation and gets it, there is no offence. If there is confusion as to what the purchaser asks for, where there is a substance of one sort in the Pharmacopœia and a substance of another sort which is not in the Pharmacopoeia, I suggest that it is for the courts to determine whether there is fraud or not. This is not new.

Sir I. Fraser

May I ask my hon. Friend a question on the point that he has just made? Could I put this half-factual and half-imaginary case to illustrate my point? Suppose that Dr. Brown brings chlorodyne to the notice of the public, advertises it and makes it a valuable article, which it was not before because few people were aware of it. There then comes a moment when it is put in the Pharmacopoeia. Some time later a customer asks for a bottle of chlorodyne. She does not say that she wants Dr. Brown's chlorodyne. She just wants a bottle of the good old chlorodyne which she has faith in. Could not the shopkeeper be prosecuted for not having given her the Pharmacopoeia article instead of Dr. Brown's, because the woman has not specified Dr. Brown's chlorodyne?

Dr. Hill

There has been one case—I think it was the Woolwich case—concerning Californian Syrup of Figs. A person asked for syrup of figs, and got Californian Syrup of Figs, which is a product of a different composition from the syrup of figs in the Pharmacopoeia. That is the one case, but it failed. It was held that there was no desire to deceive and no misrepresentation or fraud.

One is bound to give the answer that this must depend on the circumstances. The substance of my answer is that if a customer asks for a particular preparation and gets that preparation there can be no offence. A great deal of the apprehension of my hon. Friend is misplaced, and I would urge him in the circumstances to withdraw the Amendment. I have not dealt with the second point more fully because it is not affected by the Amendment, but I do assure him that the apprehensions which he feels are not genuinely aroused by the position as it stands.

Mr. Pitman

I thank the Minister for dealing with this matter, but I think he has given me the very points which I am seeking to make. To make my first point, I think I need only read Section 3 of the 1938 Act, which says: If a person sells to the prejudice of the purchaser any food or drug which is not of the … substance … demanded … I emphasize the word "the" substance—not a substance demanded. The Parliamentary Secretary has conceded the point that there are in such cases two substances however similar, and if his point is that there can be no prosecution I would say that it is much better to state in the Bill that there cannot be a prosecution where the substances are substantially but not identically similar.

My hon. Friend also said that he wants this question to be settled by the courts. I suggest that it is very desirable that the courts should not have to deal with a point which is so very clear in the Parliamentary Secretary's mind that he can assure me that there is no ground for apprehension. If he is convinced of that, let him make the Bill clear so that it is not left to the courts but is clearly indicated to the prosecuting local authorities that they have no grounds for a prosecution, and to courts how they may decide any prosecution dealing with a substance which varies only insignificantly.

I think the Minister's choice of the phrase "cough mixture" is rather unfortunate in that lit is of a character different from "chlorodyne" or any other fanciful name. Of course, there are many different cough mixtures. The point which was made by my hon. Friend the Member for Morecambe and Lonsdale (Sir I. Fraser) related to the case in which a new name is invented for a new substance and there is only that name. This comes about when the substance is new and is developed and the sale of the article is promoted round the new trade mark.

I speak with a declared interest in this matter and I have been approached by all the bodies I mentioned who are concerned in those cases involving substances where there are variants which differ only insignificantly: cases in which they believe that they should get the protection under the Bill and should not have to go to the court every time for such protection.

Mr. Norman Smith (Nottingham, South)

I hope the Minister will not give way, because behind this Amendment and the speeches of the hon. Members for Bath (Mr. Pitman) and Morecambe and Lonsdale (Sir I. Fraser) there lies a conception which I would class as a superstition, namely, the curious idea that the popularity of branded goods is indicative of the intrinsic value of those goods.

Most people are well aware that the most important ingredients in the popularity of branded goods are, first, the scale and the efficiency of the advertising and publicity behind them, and, second, and possibly even more important, the cunning and skill with which the packaging is contrived for those goods. After all, many people are artless and credulous. The whole purpose of this Amendment is thoroughly reactionary, and I hope that the Minister will not give way.

Mr. Pitman

Does the hon. Gentleman realise that cases can arise only when the product is so popular and found so effective as to have been adopted officially by the British Pharmacopoeia using the product-name of the originator?

Mr. Smith

The hon. Member for Bath (Mr. Pitman) did not know my grandmother who bought this, that or the other by reason of the package or the publicity and without any regard to testing and assessing.

Amendment negatived.

Motion made and Question proposed, "That the Clause stand part of the Bill."

Mr. Harmar Nicholls (Peterborough)

The Amendment in my name, in page 2, line 45, to add a new subsection (4) was not selected, but I think that the point behind that Amendment has been strengthened by the reply of the Parliamentary Secretary on the Amendment with which we have just dealt. He said that a question before a court must depend on the circumstances and that the matter must be left to the discretion of the courts.

It was in support of that point of view that my Amendment was drafted, and I hope that even at this late stage the Parliamentary Secretary can give further thought to the idea behind my Amendment.

Clause 2 (3) reads: Paragraphs (1) to (3) and paragraph (5) of Section 4 of the principal Act … shall cease to have effect …. but Section 4 of the principal Act still stands. Section 4 (4) of the principal Act says: where the food or drug in question contains some extraneous matter, that the presence of that matter was an unavoidable consequence of the process of collection or preparation. In those circumstances, that shall be deemed to be a defence.

I suggest that even at this late stage that we should add to Section 4—

The Deputy-Chairman

The hon. Member is now dealing more with his Amendment than with the Question "That the Clause stand part of the Bill."


Mr. Nicholls

I am discussing the Motion, "That the Clause stand part of the Bill," but I am suggesting that it is not too late, on considering this Clause, for the Minister to keep in mind this particular point, and I am suggesting that as an addition to subsection (4) we should add some such words as: or that all reasonable precautions had been taken …."—

The Deputy-Chairman

The hon. Gentleman, in discussing the Motion, "That the Clause stand part of the Bill" must not discuss additions to it.

Mr. Nicholls

If I may be allowed to proceed with this point, what I am suggesting is that this Bill has still to go through various stages before it gets on to the Statute Book, and all I am saying is that it is still possible for additions and alterations to be made.

Mr. John Paton (Norwich, North)

That is when the hon. Member can move his Amendment.

Mr. Nicholls

My Amendment was not selected.

The Deputy-Chairman

If the hon. Member's Amendment was not selected, he must not try to get round that fact.

Mr. Nicholls

If I may, I should like to close with the suggestion that the Minister who is going to reply would find that it would help his endeavours very much indeed to have the addition I have suggested. I would say to him that he ought to leave it to the discretion of the magistrates to take into account all the evidence that is brought, and if they feel able to give an acquittal after considering that all the circumstances surrounding the case warrant it, then I think it would be in the general interest. I plead in support of that point of view the defence the Parliamentary Secretary put up a few minutes ago, that it must depend on the circumstances when they are brought to court.

Mr. Amory

I only want to say a word on Clause 2. I appreciate what my hon. Friend has said, that we are not altogether happy about Clause 2, and particularly the reference back to Section 4 (4) of the Food and Drugs Act, 1938, and the use of the word "unavoidable." We have considered this point fairly thoroughly, but it is a question of the possible presence of extraneous matters which is really the important issue, and we must take a serious view of that and make sure that there are fairly heavy sanctions here. I think that in all the circumstances, when my hon. Friend thinks about it, he will find that the word "unavoidable" is correct, and if we were to try to replace it with something else we should not be doing full justice to the matter.

Clause ordered to stand part of the Bill.