HC Deb 13 February 2001 vol 363 cc202-21
Mrs. Spelman

I beg to move amendment No. 2, in page 1, line 6, after second "advertisement", insert "including product placement".

Mr. Deputy Speaker

With this it will be convenient to discuss the following: Amendment No. 1, in page 1, line 8, after "so", insert— 'but does not include an advertisement where the purpose is to reduce the prevalence of smoking, notwithstanding that it may depict a tobacco product.'.

Government amendments Nos. 40 and 41.

Amendment No. 3, in clause 4, page 2, line 23, at end insert

'or (c) if it is contained in a tender for a contract to publish a magazine in an overseas market.'. Amendment No. 7, in page 2, line 23, at end insert—

'or (f) if it is or is contained in an item of intrinsic value more than 30 years old.'. Government amendment No. 42.

Amendment No. 32, in clause 8, page 4, line 15, leave out subsection (4).

Government amendments Nos. 43, 44 and 47.

Mrs. Spelman

I commiserate with you on your sore throat, Mr. Deputy Speaker. In an amazing role reversal, perhaps you would like to catch the eye of my hon. Friend the Member for Woodspring (Dr. Fox), who may be able to help you with what sounds like a nasty sore throat.

The group of amendments is so large that I am tempted to characterise it as the whole world and his wife with the kitchen sink thrown in. I hope that hon. Members will bear with me as I present our amendments, which are diverse and cover different subjects. Some raise new points: others deal with points that arose from consideration in Committee. They need to be examined on Report.

Amendment No. 2 would incorporate for the first time in the Bill the phrase "product placement". We discussed the definition of "advertisement" in Committee, but we were unsuccessful in obtaining a clear definition from the Government. That weakness will make it difficult for those who must work with the Bill to know what constitutes an advertisement. We successfully drew out from the Minister a few examples that would not be regarded as advertisements. It was helpful to know that tobacco packaging is not regarded as an advertisement. However, the matter was left unclear.

Mr. Ian Bruce

I know that my hon. Friend is trying to pass on to hon. Members the advice that we received from the Minister that a packet did not constitute an advertisement. However, that does not appear in the Bill.

Mrs. Spelman

I thank my hon. Friend for that point. He is right that we are trying to convey to hon. Members who did not serve on the Committee, and might not have had a chance to read Hansard closely, some of the problems to which we are reverting on Report. Some clarification that was given in Committee is not incorporated in the Bill, and that will make it difficult for people to work with the measure.

One important concept missing from the Bill is product placement, which is a widely used method of advertising. We share the Government's concern to reduce the prevalence of smoking and we believe that product placement is a potent form of advertising. It might be helpful if I tried to define product placement, in case hon. Members are unfamiliar with the concept. I would define it as deliberately placing a product in view for the purpose of promoting it. Perhaps hon. Members can think of television programmes or films in which a tobacco product has been clearly placed in view and left there for a considerable time so that the brand is etched on our memory. If one consults avid watchers of soap operas—not that I am one—they are even able to identify the brand of cigarette smoked by the stars in the cast. That is a potent example of product placement.

In Committee, we touched on the question of product placement and stressed to the Government that it was a potent form of advertising to the young in particular, many of whom are avid watchers of television soap operas. I always do my level best to dissuade my children from watching such programmes, for a variety of reasons to do with the values that they sometimes impart. It is a matter of concern that young people watch television programmes or films in which their role models—the stars of the programmes or films—are party to product placement in which a tobacco product is placed in clear view.

Mr. Eric Forth (Bromley and Chislehurst)

Is my hon. Friend confident that she, or whoever she envisages carrying out the task, could distinguish between what she categorises as product placement and the incidental or accidental portrayal of a product? Is she confident that she could draw that line of distinction?

Mrs. Spelman

That is very difficult to do precisely. I shall come in due course to the regulations governing broadcasting, some of which leave such decisions to the editor, saying that such placements may be made if they are editorially justified. I hope that my right hon. Friend would agree that an editor's judgment can become very subjective on those questions, and that it is difficult to say objectively what is editorially justified and what is not.

I want to draw to the House's attention a recent piece of research published in volume 357 of The Lancet, on 6 January 2001. The research undertook a survey of a 10-year sample of contemporary films, examining the increasing role and importance of product placement in them. It established that more than 85 per cent. of the films contained tobacco use. Tobacco brands appeared in 28 per cent. of the films, and brand appearances were as common in films suitable for adolescent audiences as they were in films for adult audiences. That is, 32 per cent. of films for adolescent audiences and 35 per cent. of films for adult audiences contained such appearances. If we are concerned to protect young people, we should be concerned about that.

Tobacco brands were also present in 20 per cent. of the films rated suitable for children. That gives me, as a parent, cause for disquiet. The research stated that brand placement in films had become a preferred method for companies to raise brand awareness and develop favourable associations with their products in an international audience. I fear that there will be an increasing amount of product placement when other conventional forms of advertising are banned by the Bill. Undoubtedly, a great deal of effort will be made in that direction by those wishing to promote tobacco.

Mr. David Taylor

The main thrust of the Opposition's attitude to tobacco advertising is that it serves only to encourage switching between brands. Is it not, however, the case that, in instances of product placement—of which the hon. Lady is rightly critical—a viewer is very rarely able to determine the brand of cigarette being smoked? I hate to echo the comments of the right hon. Member for Bromley and Chislehurst (Mr. Forth), but he made a fair point. One really cannot determine the brand from the way in which tobacco products are placed in entertainment programmes.

Mrs. Spelman

The hon. Gentleman may yet find that more emphasis will be placed on raising brand awareness through this method. There may be more attempts at raising brand awareness, rather than simply presenting a familiar star or television character smoking. It is undoubtedly the goal of a company to increase its market share and, as other forms of advertising are made unavailable to it, it will seek out the remaining opportunities.

The point of the new clause is to introduce the words "product placement" into the Bill. We are concerned that the existing constraints are not sufficiently effective. We should be deeply concerned that the research published in The Lancet showed that as many as 85 per cent. of films in the past 10 years showed tobacco use, and that tobacco brands appeared in one third of the films surveyed.

When we debated the issue in Committee, we raised with the Minister the problem that many of the most successful blockbuster films in this country emanate from Hollywood and are produced under codes, laws and conventions beyond the jurisdiction of this House. Some of the most blatant examples of product placement relate to American-sourced films. Nothing that could be done as a result of the Bill would curtail what is shown in an American film, unless the Government have plans for some sort of censorship over when the product placement occurs. An example of a brand being shown could involve the stars of a film having a long conversation while standing in front of a billboard advertising, say, Marlboro cigarettes. Under the Bill, it would remain possible for tobacco companies to promote a particular brand in that way.

Reading the research on films, I was concerned to discover the kind of money that goes into the effort to place products. For example, in the film "Mr. Destiny", Walt Disney studios charged advertisers $20,000 for showing a product, $40,000 for showing a product and having an actor mention the product's name, and $60,000 for showing an actor using the product. Those are very substantial sums.

Our purpose in tabling the new clause is to signal to those having to work with the existing arrangements for product placement that we are aware that there may be a major loophole in this area, and that the present constraints are not effective enough. I mentioned American films being shown here and the fact that they are one of the most powerful tools for the promotion of tobacco products. They are particularly effective among young people, among whom the rising prevalence of smoking is causing great concern.

One could not discuss the amendment without examining the rules already in place, which brings me to the point raised by my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth). For his and other hon. Members' benefit, it is worth mentioning what the rules are concerning product placement in programmes.

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According to the rules, Where their use is clearly justified editorially, products or services may be acquired at no, or less than, full cost. Provision of the article must not be conditional on any specific agreement as to the manner of its appearance in the programme. The onus therefore rests entirely with the editor.

The notes accompanying the rules state: No undue prominence may be given in any programme to a commercial product or service. In particular, any reference to such a product or service must be limited to what can clearly be justified by the editorial requirements of the programme itself. Again, all the onus is on the editor.

I suggest to my right hon. Friend the Member for Bromley and Chislehurst that the problem lies with the extent of the editorial subjectivity involved. Under the current rules, product placement is clearly possible in programmes produced and shown in this country. We ought to have some control over it, but the rules are clearly insufficient to prevent the youth of today from telling us which brand of cigarettes their favourite film stars or television actors smoke.

Mr. Peter Atkinson

May I explore the issue of product placement as it relates to a later part of the Bill? My hon. Friend mentioned films made in the United States and distributed in this country. The Bill mentions only printed journalism; would the distributor of those films, or indeed someone who copied videos of them for commercial purposes, be subject to prosecution under my hon. Friend's proposals?

Mrs. Spelman

We discussed in Committee whether the proposal would result in thought police dashing around this country's cinemas deleting parts of films that featured blatant product placement. I seem to recall—the Minister may confirm this—that responsibility for adhering to a set of British guidelines on product placement rests with the distributor; but in practical terms it would be impossible to implement such censorship. We are talking about what are effectively foreign-produced, imported films, and a degree of international co-operation is clearly desirable.

The research in The Lancet, which in fact emanates from academics in the United States, has produced a proper analysis of the films concerned, most of which are American-based. It demonstrates that whatever legislation exists in the United States to control product placement is not particularly effective either. This is a classic example of the difficulty of taking effective unilateral action in an international market.

It is ridiculous to try to ban conventional tobacco advertising while leaving an enormous loophole in relation to product placement. It is plain that existing regulations do not work adequately in the context of a British-produced product over which we have some jurisdiction, and our purpose was to draw attention to the problem. I hope that the faith of the hon. Member for Rother Valley (Mr. Barron) will be restored to some extent by the knowledge that we share a public health agenda in wishing to reduce smoking, especially in the vulnerable group who start smoking young and subsequently find it difficult to stop—if, indeed, they want to stop.

Amendment No. 1 deals with a different subject, but again I hope that all Members will appreciate—in the context of a health Bill—that we share the objective of reducing smoking. That is clearly desirable in public health terms. Ours is a probing amendment, intended to ensure that the Bill does not inadvertently catch an advertisement that is actually designed to reduce the prevalence of smoking.

I ask hon. Members to imagine a large poster, pitched at trying to deter under-age smokers, depicting a young person stubbing out a cigarette. The accompanying slogan would read, perhaps, "Stub it out—don't stub your life out." Such a poster, depicting someone using a tobacco product, would be in a sense attractive, and in a sense pitched at young people; but its hard message would also be directed at young people, whom it would attempt to deter from smoking.

We must not risk catching anti-smoking health education posters in the ban on tobacco advertising. The amendment is intended to make it possible to continue with hard-hitting health education measures that may well require classical forms of advertising. As the Bill stands, it will close the door on such measures.

Sandra Gidley (Romsey)

Might not the amendment provide a loophole for manufacturers of low-tar cigarettes, enabling them to claim that their products were beneficial in health terms?

Mrs. Spelman

The amendment was not designed to create any sort of loophole. No amendments were tabled by Liberal Democrats in Committee, but it would have been helpful if the hon. Lady had tabled even one. Indeed, the whole question of low-tar products could have been raised in a series of amendments.

As someone who served in Committee on the Health and Social Care Bill, the hon. Lady presumably knows that no distinction is made between high, low and middle-tar products; the aim is to impose a blanket ban on tobacco advertising. Our probing amendment is intended to ensure that good health education campaigns are not caught by the legislation. I wish members of other parties would begin to believe that we have a health agenda, rather than being doubting Thomases.

Mr. David Taylor

Does not the amendment introduce an oxymoron? If it were accepted, clause 1 would state that "tobacco advertisement" meant an advertisement whose effect was to promote a tobacco product but does not include an advertisement where the purpose is to reduce the prevalence of smoking". Is that logically consistent?

Mrs. Spelman

I am not sure about the oxymoron. As the hon. Gentleman will note from the debate on the programme motion, we shall be jolly lucky if there are no oxymorons, given the speed at which the Bill zipped from Committee to Report. As it is, there is a typographical error in amendment No. 13, although there was certainly no intention of producing any grammatical or typographical mistakes.

As I have said, ours is a probing amendment, intended simply to ensure that we do not close opportunities for good, justified health education campaigns. It is quite possible that a health education poster might depict a tobacco product as part of a hard-hitting message about the health risks of taking up smoking, or continuing to smoke. I am sure that the Minister has an answer; I do not think it necessary to see more in the amendment than I have explained. Health education campaigns were successfully used by the previous Conservative Government to reduce the prevalence of smoking. We want to make it possible to continue such campaigns, which have been shown to work. That is the simple purpose of amendment No. 1.

Government amendments Nos. 40 and 41 enable us to debate a subject—the position of printers and publishers of written material—which, as my hon. Friends have said, is very important to Conservative Members. I pay tribute to my hon. Friend the Member for Mid-Worcestershire (Mr. Luff), who, with his experience in the printing industry, was the first to point out that the Bill might well place British printers in a very difficult position and at a competitive disadvantage. Our amendments seek to restore the position of British printers and publishers, to free them to tender in international markets for publications that, although directed principally at an overseas market, may be sold partly in the United Kingdom.

As originally drafted, the Bill would have placed British printing companies at a competitive disadvantage. I am therefore very pleased that the Government have conceded on the issue, so that publications printed in the United Kingdom whose main market is abroad will be able to compete equally with overseas publishers.

Mr. Ian Bruce

The Government are trying to address that issue, but not the issue of in-flight magazines, which we raised in Committee. My hon. Friend the Member for Mid-Worcestershire (Mr. Luff) said that he had taken an Air France flight that had an in-flight magazine containing tobacco advertisements. Although one would not think that that magazine would be caught by the provision, the plane was owned not by a French company but by a British one flying for Air France. The Government amendments in this group would not deal with that. The Bill would stop that British company flying for Air France because of those tobacco advertisements in the in-flight magazine. Is that not ridiculous?

Mrs. Spelman

I hope that, for the benefit of members of the Committee and other hon. Members in the Chamber, the Minister will address the issue of the predicament faced by United Kingdom airlines that have code-sharing arrangements. That issue is similar to the one that my hon. Friend has just described. When we purchase a ticket with a United Kingdom airline, we expect to be flying with that UK carrier, although the plane may be supplied by a continental carrier. However, will stewardesses on a Finnair flight returning to a Scandinavian country as a British Airways flight, for example, have to rush through the plane ripping out the in-flight magazines? It will be quite difficult practically for airlines to comply with those provisions.

Mr. Peter Atkinson

The provisions will also work in reverse. United Kingdom airlines operating out of United Kingdom airports—Newcastle airport provides a very good example—provide services for foreign airlines. Where do those airlines stand?

Mrs. Spelman

are now beginning to discuss the reality of how the provisions will work. Government amendment No. 41 accepts our attempt to accord the United Kingdom print industry a more level playing field in tendering for publications that are destined for overseas markets and may contain tobacco advertisements, although some copies may be sold in the United Kingdom. However, United Kingdom airlines will still be at a competitive disadvantage if, unlike other airlines bringing passengers to and from this country, they cannot have an in-flight magazine. That issue has yet to be resolved.

It will be interesting to hear whether the Minister has any thoughts on how to deal with that competitive disadvantage. I emphasise that the problem is especially acute for United Kingdom airlines that have code-sharing arrangements. The Government will have to revisit that issue.

6.45 pm

The Government have made another related concession in amendment No. 40. The UK print industry would have been placed in a considerable predicament if the Government had decided not to leave out clause 2(3). That provision would have made it an offence for someone to publish or distribute a tobacco advertisement or something else which is accompanied by a separate entity, containing, or being, a tobacco advertisement. The removal of the provision may provide some practical help to British printers and distributors, who, unlike their overseas competitors, would have to comply with the provision.

Although our amendment No. 3 is eclipsed by the Government's concessions on the United Kingdom print industry, in Committee we identified another quirky problem. I must give credit for that where it is due. My hon. Friend the Member for Mid?Worcestershire was driving through his constituency when, passing a local antique shop, he was struck by the fact that the Bill's provisions would cover historical tobacco advertising signs. If hon. Members cannot picture the type of sign to which I am referring, they are the old enamel ones that promoted products such as Players or Senior Service cigarettes.

Those signs are now collectors items and are very sought after, and they might be placed outside an antique shop not to promote tobacco, but because they are desirable and have increased in value. Such museum-piece tobacco advertisements are also found occasionally in pubs. Fashion has it that such signs evoke nostalgia, as they cause some people to think back to when it was perhaps customary to smoke a pipe or to roll one's own cigarettes, using old tobacco brands that have now gone by the board. However, some of those brands are still being sold. One sometimes sees mirrors bearing the Marlboro logo, or Marlboro posters from the 1950s depicting scenes from the wild west. Pubs, restaurants and similar places of refreshment often display those items to enhance their ambience. The items are really curios and novelties.

It is unreasonable to try to ban those historical tobacco advertisements as their primary purpose is no longer to increase the market share of the erstwhile companies that promoted those brands. In our amendment No. 7, we seek to protect little antique shops that wish to display such enamel signs as part of their legitimate attempt to make a living from the sale of nostalgia and memorabilia, which many of us seek to procure as an investment or for sentimental reasons.

The other Government amendments in this group deal with points that we made in Committee. Government amendment No. 42, however, seems to provide that a proprietor would be guilty of an offence simply by displaying the price of tobacco products on a website or in a place where those products are sold. I ask the Minister to clarify that point. That would apply if such displays were not compliant with regulations that set out what is and what is not legitimate. In Standing Committee, the Minister was asked whether, in due course, it would be possible for airlines selling duty-free cigarettes to display anywhere a list of prices for those products. Price is of the essence in the purchase of duty-free cigarettes, and the Minister acknowledged that a price list would have to be displayed. However, Government amendment No. 42 seems to be quite severe, as it appears to make it an offence to display the prices of cigarettes in a place where they are sold. Once again, we will have to wait for a proper definition of what constitutes a display.

The Bill contains no definition of what constitutes a compliant display and what does not. That is another example of how we are not a great deal further on than we were in Standing Committee. That leaves us disquieted.

Mr. Ian Bruce

We were told in Standing Committee that the Government had no intention of introducing any regulations to tell firms what they could or could not display. The matter has been left mute, as it were. It might be that a future Government, thinking that a product was being displayed incorrectly, would bring in some regulations. Is not that ridiculous?

Mrs. Spelman

Absolutely. The problem with Government amendment No. 42 is that it clarifies nothing. The absence of the regulations means that someone will have to get the judgment wrong and be dragged to court charged with an offence before what constitutes a compliant display is clarified for everyone else.

It is legitimate to ask whether it is allowable to stack packets of cigarettes on the trolley being rolled down a plane's central aisle. Must the air hostess have the price list in her pocket to comply with Government amendment No. 42? It is an important question about the practical working of the Bill, and we need an answer.

Government amendment No. 43 is a concession from Standing Committee that we value. The Bill states that giving away coupons of a nominal value could constitute an advertisement, and that the tobacco companies involved could be caught. In Standing Committee, we pointed out that the term "nominal sum" was ill-defined. It is feasible for a nominal sum to be quite substantial—for example, for a coupon or voucher to be worth £10 off the value of 200 cigarettes. We are pleased that the Government have conceded that the term "substantial discount" is better. However, the process seems rather long winded, as now we need a definition of the term "substantial discount".

Mr. Forth

I am glad that my hon. Friend said that, as I was surprised to hear that she was unhappy about the term "nominal" yet more content with the term "substantial". If I were to catch your eye later, Mr. Deputy Speaker, I would try to develop that theme and say that the word "substantial" is not much more helpful than "nominal". Would my hon. Friend say that Government amendment No. 43 takes us much further forward?

Mrs. Spelman

The weakness of the word "nominal", which we tried to get changed in Standing Committee, stems from the fact that coupons can have quite a substantial value. One weakness of the Bill is that neither term is clearly defined. A further weakness is that we must wait an unspecified length of time before we get a regulation that gives guidance to companies about what is in order and what is not.

I touched on the issues affecting Government amendment No. 47 when I spoke to amendment No. 2 on product placement. The Bill attempts to assure us that the Broadcasting Acts of 1990 and 1996 cover tobacco advertising by the broadcast services. However, are those Acts effective? I hope that I showed earlier that it is clear that they are not sufficiently effective. A great deal of product placement goes on in the material broadcast by those services, despite the existence of the rules referred to in Government amendment No. 47. The Government should look again at the option preferred by the Opposition, which is to include the key phrase "product placement" in the Bill.

Mr. Barron

I shall speak briefly to amendment No. 2. The hon. Member for Meriden (Mrs. Spelman) made a good job of saying exactly how product placement appears in different forms in the media. Earlier in the debate, I said that cigarette advertising was removed from television in 1965, but that the presence of brand names on television was preserved through the sponsorship of nationally televised sports such as cricket, Formula 1 and so on. Advertising and promotion are effectively the same thing. I am sure that my hon. Friend the Minister will agree that we cannot simply ban something without looking at what happens afterwards.

In Committee, we discussed the advertising agency memorandum about the television news coverage given to the launch of a new Jordan racing car. The memo said that coverage on "News at Ten" and the "Nine O'clock News" was worth £180,000 of television advertising. Taking into account the coverage on Sky, Channel 4 and Channel 5, the total coverage was said to be worth £250,000 of advertising on the national network. It is clear that advertising agencies and the tobacco companies that paid them wanted products to get covered in news items. Product placement is therefore very important.

Another example involves Sylvester Stallone, whose contract required that his films promoted a particular American tobacco product. The poster advertising tobacco products often plays a prominent role in scenes in Hollywood movies. Some people argue that it is relevant to the film, but I tend to disagree.

I hope that my hon. Friend the Minister will consider how product placement can spread further in the media. Does she believe that Government amendment No. 47 would cover that possibility? That is especially important with television under British jurisdiction.

There is no question, as the hon. Member for Meriden said, but that young people look up to role models on television who use tobacco products. They recognise that a role model smokes a particular brand. My hon. Friend the Member for North-West Leicestershire (Mr. Taylor) said that when tobacco products appear on soap operas, often we cannot tell the brand. He should watch soaps a bit more regularly, because we can. Therefore, I think that amendment No. 2 has some merit, and I hope that the Minister will comment on it.

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Mr. Atkinson

Now that I have read the Bill a little more thoroughly, I appreciate why the Minister did not answer what I said about publishers and publications, because they are better debated on this second group of amendments. Having looked at the Government's amendments, I can see what they are trying to do, but I still have concerns about how the Bill will operate with regard to publishers and printers.

My hon. Friend the Member for Meriden (Mrs. Spelman) has dealt with printers who print a newspaper or magazine for export. However, I still do not understand how satellite printing of international publications will be affected. I have no idea whether publications such as the International Herald Tribune, USA Today and the Financial Times carry tobacco advertising—I suspect that they do not. Even so, what is the position? What is the principal market? Is the United Kingdom the principal market of USA Today, which is printed here as well as in other centres in Europe? If USA Today decided to carry cigarette and tobacco advertisements, would it be prosecuted?

A more likely scenario would involve magazines printed here by satellite. Technology has made satellite printing increasingly popular. It saves moving large quantities of heavy newsprint around the world, so more magazines will be using that process.

I do not know whether right hon. and hon. Members read Hello!, but it is actually a Spanish magazine, with an English edition that circulates outside England, largely in Scandinavian countries whose readers have a good command of English. How do we define whether the UK is a principal market of the English language version of Hello! magazine? Would that be determined on the basis of circulation or revenue?

Mr. Ian Bruce

Is it not a worry for us, as British parliamentarians, that we will be setting up a competitive advantage for publishers in other countries? They can sell into the UK market simply by saying that their main market is still over there. The editions that they produce will not be printed here, thereby losing jobs and revenue. Such magazines would be greatly subsidised because the tobacco industry, as we have been told, will find ways of spending its promotional budget on subsidising them.

Mr. Atkinson

I am grateful to my hon. Friend for his comments. Although I mentioned newspapers and magazines with a large circulation, such as Hello!, I think that the problem will lie with the specialist magazines with smaller circulations, such as 4x4 cross-country vehicle specialist magazines. There are a number of such titles. They feature the Camel trophy and other motor sports events, which may or may not be covered by the Bill. It would be simple for such magazines to print abroad and supply copies to the UK.

Such magazines are international; they circulate in other parts of Europe and the United States. It would be easy to move their base from the UK to Europe. The situation would be ludicrous: one 4x4 magazine on the newsagent's shelf would be stuffed full of advertisements for cigarettes and tobacco, while another, printed in the UK, did not carry such advertisements. That would give the magazine printed outside England a serious competitive advantage. We need to explore that possibility further, because I would hate to see yet more confusion attached to the Bill.

Product placement in films is an extremely complex matter. We have talked about films made in the United States and distributed here, and films made on video in the United States and copied here. Then, of course, there are the old classic films. Will we have to stop showing Humphrey Bogart because a packet of Lucky Strike is in the background? There are still some fascinating alleyways to explore tonight.

Mr. Andrew Hunter (Basingstoke)

I listened with great interest to my hon. Friend the Member for Meriden (Mrs. Spelman) speaking to amendment No. 2. I am glad that she described it as a probing amendment, as I could not fully support it. Indeed, I have grave reservations about it. I agree with my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), who, if I heard him correctly, suggested that it would be almost impossible to distinguish between product placement and what, for convenience, one could call a necessary theatrical prop. To make the distinction by means of regulations would be well nigh impossible.

I hold the view that there is nothing particularly wrong with product placement. I am not prepared to join the witch hunt. I believe that the Bill is fundamentally flawed because there is nothing essentially wrong with the existing voluntary code and the necessary measures taken to control smuggling.

Hidden in this large group of amendments is amendment No. 32, in the names of my right hon. Friend the Member for Bromley and Chislehurst and myself. I was not a member of the Standing Committee, which I regret, but I have studied its proceedings in the Official Report. The Minister introduced a new clause in Committee that said that there should be regulations governing the display of tobacco products at the point of sale or elsewhere—regulations quite separate from those governing advertising at the point of sale or elsewhere. Previously, it had been envisaged that there would be a single set of regulations governing both advertising and the display of products at the point of sale or elsewhere.

My instinctive reaction was that this was regulation gone mad. Regulation gone mad is also well exemplified in clause 8(4), which amendment No. 32 seeks to leave out. Subsection (4) demands that the regulations that govern displays

must make provision for a display which also amounts to an advertisement to be treated for the purpose of offences under this Act—

  1. (a) as an advertisement and not as a display, or
  2. (b) as a display and not as an advertisement."
It would be fascinating to analyse precisely what that subsection means. I suspect that it is simply that a display must be deemed either a display, which is subject to one set of regulations, or an advertisement, which is subject to another set of regulations.

The problem that we encounter, which has already been referred to, is that on Second Reading, throughout the Committee stage, and today, the Minister has consistently and constantly rebuffed suggestions to amend the definition in clause 1 so as to make it clear what counts as a tobacco advertisement. Subsection (4), which I argue should be deleted, refers to a display that "amounts to an advertisement". That begs the question: what precisely is an advertisement? Is there a difference between an advertisement and something that "amounts to an advertisement"? That subsection highlights the need for a clearer and much more explicit definition.

In Committee, the Minister made a point that took me unawares. She said that the Government accepted that there were reasons for permitting a certain amount of advertising at points of sale, to communicate price or product availability. That seems to undermine the Government's whole argument. However, if a display of tobacco products is a tobacco advertisement as defined by clause 1—an advertisement whose purpose or effect is to promote a tobacco product"— such a display is already banned under clause 2. There is thus no need to provide in clause 8(4) for regulation that has already been provided in clause 2.

The subsection poses a series of questions. Our amendment asks whether there is really a difference in kind between display and advertisement. Can that difference be expressed or defined in practicable or credible regulations? I am not remotely convinced that those questions can be answered positively. That is why it would be far wiser to leave out subsection (4).

Mr. Forth

I support and echo the comments of my hon. Friend the Member for Basingstoke (Mr. Hunter), but I shall concentrate on some of the other amendments in the group. I share the reservations expressed by my hon. Friends about the concept of product placement. We can all recognise the phenomenon when we see it—or think we see it. That is one thing; it is quite another to provide a sufficiently viable framework within which to try to make such a distinction regularly and systematically and then to deal with it. The concept is difficult to define, and thus a difficult basis on which to implement measures successfully.

The problem is exacerbated because, as one of my hon. Friends pointed out, it commonly arises in old media presentations—be they films or whatever—rather than as a deliberate and subtle attempt, in the modern context, to promote a product. To try to use such a concept as has been suggested would require a much better working definition than has been offered thus far.

Amendment No. 1 is crucial. Were this ill begotten Bill ever to reach the statute book, we would risk losing the great expenditure and effort that has been put into warning people of the dangers of smoking. One of the paradoxes of our time is that the suppliers of tobacco products are obliged—although in many cases they do it voluntarily—to put health warnings about their product on its packaging.

A further paradox of our time is that the industry itself spends a great deal on issuing health warnings. If we are to go ahead with this ill conceived scheme, surely we must try to ensure—as far as we can—that when advertisements for the product are removed, proper health warnings are not eliminated at the same time. Although tobacco is a legal product and I believe that people should be absolutely free to use it, I accept that it is a proper responsibility of Government to warn people of the fact that it may endanger their health. However, having been properly informed of the dangers, adults should then be allowed to make up their own minds whether to use a substance—be it tobacco or alcohol.

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Mr. David Taylor

Does the right hon. Gentleman agree that although adults may be exercising their own free will—as he describes it—they may also be unable to overcome the addictive effects of nicotine that have been so carefully implanted in them through a succession of earlier appeals to smoke? Many teenagers take up smoking. Fewer than 50 per cent. of those who start to smoke by the age of 15 have given up smoking by the age of 60.

Mr. Forth

That question introduces an element that I suspect you would not want me to pursue too far, Mr. Deputy Speaker. The hon. Gentleman makes a contentious assertion; he obviously believes it, but it might not be borne out. In any case, the argument would also apply to alcohol, to which many people, sadly, are addicted.

In connection with amendment No. 1, I want to make the point that we must not endanger any capability or willingness on the part of the manufacturers and promoters of the products to provide appropriate warnings. That, rightly, is the aim of the amendment. It is important to ensure that we do not jeopardise that.

Several of the amendments deal with the provisions under clause 4, with which we seem to be getting into the most awful difficulty. Although one can understand the motivation behind the clause, I doubt whether its provisions can be effectively implemented. Subsection (1)(c) refers to the "principal market" and the United Kingdom. As we have already seen—and as the Members who had the privilege, pleasure and honour of serving on the Standing Committee must have discovered over and over again—the Bill is shot through with vague concepts that are either ill defined or undefined, yet are crucial to the thrust and meaning of the measure. Subsection (1) illustrates that. The term "principal market" will be of no help or guidance whatever to those who will be given the responsibility of implementing the Bill should it ever become an Act.

As my hon. Friend the Member for Hexham (Mr. Atkinson) pointed out, the matter is complicated by the fact that, when one is dealing with the world of modern publication, it is not viable, satisfactory or deliverable to talk about one market as opposed to another, given the extent to which people, products, publications and information flow freely across international boundaries. That is one of the ironic effects of our membership both of the European Union and of the European Economic Area. It is thus even more difficult to define properly and adequately where one market begins and another ends. I submit that the term "principal market" with reference to the United Kingdom is extremely difficult to define. The fact that direct reference is made to that concept makes the provision of dubious value.

Subsection (d) refers to "a United Kingdom airline". Even that concept is difficult to define. Is Cathay Pacific a United Kingdom airline? Some years ago, a trick question asked, "What is the second biggest British airline?" Few people correctly answered that it was Cathay Pacific. The airline was, in essence, British-owned, even though it mainly operated in the far east. I mention that example only to illustrate the difficulty of giving an adequate definition of a phrase as apparently simple as "a United Kingdom airline", as used in the measure. That aspect of the Bill is far from adequate, and the amendments do not help at all.

A similar problem, which arose when my hon. Friend the Member for Meriden (Mrs. Spelman) moved the amendment, will arise later when we discuss nominal sums and substantial discounts. There is a genuine effort to improve the Bill and make it more accurate, but it falls far short of what is desirable.

I suspect that the Minister will say, "Don't worry about that, folks—it will all be made clear in regulations." That is the classic answer that Ministers give when presenting such a Bill, but I am not sure whether it is good enough in this case. Much of the Bill's thrust and its likely effectiveness depend on the viability and practicability of the regulations, rather than on the Bill itself, but even at this relatively late stage, we are no more able to judge whether it is likely to be effective. We are completely in the dark about how the Government will tackle the underpinning regulations, on which so much will depend. I find it very unsatisfactory that I am still unable to make that judgment.

I hope that the Minister will explain amendment No. 47—the final amendment in the group—because, coming new to the Bill, as I did not have the privilege of serving on the Standing Committee, I am intrigued as to how such a change can be suggested. The suggestion is that we should change the wording in clause 12(2) from This Act does not apply in relation to a tobacco advertisement to This Act does not apply in relation to anything included in a service". At this stage, to move from the phrase "a tobacco advertisement" to the word "anything" involves a rather large leap of either faith or imagination.

I hope that the Minister can tell us how, now that the Bill has managed to reach this stage in its proceedings, she still has to ask us to approve an amendment that produces such a difference in meaning and direction. That is even more important because we are talking about an exemption, using the words, This Act does not apply in relation to". I can understand that that might be relevant to a tobacco advertisement, but it is remarkable to state: This Act does not apply in relation to anything included in a service to which any of subsections (3) to (6) apply. We need to hear a very comprehensive explanation from the Minister as to how she and the Government have got themselves into the position of having to make such a change at this stage.

All in all, the position is very unsatisfactory indeed. Notwithstanding the Standing Committee's mighty labours, and the huge accumulated brainpower and concentrated effort of its members during many sittings, the Bill is still pathetically inadequate, so I leave the House, including the hon. Members who did not serve on the Committee, to judge the quality of its work. The fact that the Government have tabled so many poor quality amendments is a sad indictment of them.

Mr. Taylor

Does the right hon. Gentleman agree that the logical, honest and consistent approach, bearing in mind his comments so far, would be to vote against Third Reading?

Mr. Forth

Yes, and I intend to do so. I am grateful to the hon. Gentleman for giving me that little trailer for what I fully intend to do—although the Minister has an opportunity to use her eloquence and powers of persuasion to make me change my mind. However, at the moment, not only do I disagree with the Bill's thrust and principle—which, of course, we are not now debating—but I have, I hope, shown that I believe the Bill to be so flawed that even if I agreed with its main purpose, I would feel unable to support it. The Minister now has an opportunity to persuade us all—and good luck to her.

Yvette Cooper

I shall try to deal with each amendment in this group and respond, in turn, to the points that hon. Members have made. On amendment No. 2, moved by the hon. Member for Meriden (Mrs. Spelman), we are sympathetic to her intention on product placement, although I was interested in the fact that many Conservative Back Benchers are perhaps not quite so sympathetic to it. The amendment is not necessary and, as worded, would not be helpful. I shall clarify the Government's view on product placement and how it will be covered by the Bill.

If product placement occurs in this country in the form of an agreement to promote a tobacco product, perhaps through a film or television programme, it will constitute a sponsorship agreement. If that were done through television, it would be covered by the Broadcasting Acts. If it were done through film, it would constitute a sponsorship agreement and be covered by the provisions on such agreements. Of course, if such product placement occurs abroad, we cannot prosecute the parties to the sponsorship agreement; we do not have extra-territorial jurisdiction in this respect.

What will happen if a film that includes an overt placement of a tobacco product, which is clearly promoted by a tobacco company, is distributed in this country? I make it clear that our intention is not to prevent films from showing smoking. We do not intend the Bill to cover films, or other kinds of theatrical expression, that show smoking as part of their artistic freedom of expression. We may not like the fact that a film or theatrical production glamorises or appears to promote smoking, but if smoking is part of the artistic freedom of expression, we have to be careful what we rule out, even though we disagree with it.

Under the Bill, we want to rule out advertisements that promote tobacco products in the course of a business; we do not want to restrict freedom of expression. In fact, I would defend the right of artists to smoke on television or in films. The Government should not censor such matters. However, if something is a tobacco advertisement and if it promotes a tobacco product in the course of a business—for example, if a Marlboro advert is strung out for three quarters of hour—it will be covered by the Bill, even if it is produced in another country, so distributors will need to consider their liability. They will, of course, have to have a defence if they did not know, or could not have foreseen, that that would be the effect, but distribution will be covered by the Bill.

Amendment No. 1 would exempt from the definition of an advertisement those advertisements that depict tobacco products where the purpose is to reduce the prevalence of smoking. If the purpose of an advertisement is to reduce the prevalence of smoking, it will not come under the definition of an advertisement the effect of which is to promote a tobacco product. Such an advertisement will not be covered by the Bill, unless it is so useless and bad that its effect is to promote a tobacco product and smoking. If an advertisement is that bad, it should be withdrawn; it should be not put up on our billboards. There is no intention to prevent health education or health information advertisements, and they will not be covered by the Bill, so amendment No. 1 is unnecessary.

Mr. Ian Bruce

I am grateful to the hon. Lady for giving way because I am sure that she wants health messages to be effective. Is she aware of the excellent work of the life education caravan movement, which encourages youngsters to be aware of their bodies and how they can be harmed? It has advised us that telling people not to smoke encourages them to do just that. It is necessary to have a completely different approach to the problem. If an advertisement for non-smoking encourages people to experiment with smoking, it will be covered by the Bill.

7.30 pm
Yvette Cooper

I would be extremely interested to see research to support the idea that such health information campaigns are counter-productive, although I have to admit that I have seen advertisements from other countries to encourage people to drink less that probably had the reverse effect. Advertisements to promote tobacco products are covered by the Bill; advertisements to help people to give up smoking or to prevent them from starting are not. A great deal of evidence would be needed to show that such advertisements had the opposite effect, and if that were the case, they should not be distributed.

On Government amendment No. 40, we reconsidered the issue of separate entities and inserts. Let me clarify our approach. We are not saying that separate entities are permissible and that it is acceptable to include inserts that advertise tobacco. We decided that clause 2(3) was unnecessary because inserts, such as those in our Sunday newspapers, that include tobacco advertisements count as published inserts and whoever has published them is responsible for them. If an insert is published with the magazine, the magazine publisher is liable. If it is tucked in by someone else at a later stage, the person who published the insert is responsible and whoever tucked it in is likely to be covered by the provisions on distribution. No matter how we look at it, those who are responsible for publishing or distributing the advertisement are likely to be caught by the Bill.

On Government amendment No. 41, we decided to reconsider the issue of United Kingdom printers. The hon. Member for Mid-Worcestershire (Mr. Luff) said that they should not be prevented from working on foreign publications that contain tobacco advertisements if those publications would qualify for exclusion. The hon. Member for Hexham (Mr. Atkinson) also raised that matter. It would cause concern if clause 4(1)(c) permitted a publication to be produced, but the Bill's provisions caught the printer who was working on it. The amendment clarifies the situation.

Mr. David Taylor

Is my hon. Friend convinced that the clause, as amended, provides an adequate definition of the principal market as it relates to the United Kingdom?

Yvette Cooper

The concept of the principal market is an important part of the Bill. We do not want companies whose principal market is not the UK to be covered by the Bill if the publication is also circulated here. We have not provided a specific quantification of what "principal market" might mean because it will vary in different circumstances. For example, the definition of an appropriate market share to determine whether the UK is a principal market will be different if a product has five or only two markets. If the biggest market for a publication is the UK, that will count as the principal market.

Mr. Forth

The Minister seems to be suggesting that if there were four or five markets of broadly equal size, which is not impossible, the principal market could be 20 or 25 per cent. Is that what she imagines principal to mean in such circumstances?

Yvette Cooper

The assessment would need to be made on individual cases, depending on the circumstances involved. There would probably be a different test for those publications that have several markets rather than just two. It would be wrong to provide a quantification of a market share that might be difficult to apply in different market circumstances.

Amendment No. 3 would create an additional exclusion for advertisements so that no offence would be committed in relation to a tobacco advertisement if it is contained in a tender for a contract to publish a magazine for an overseas market. The hon. Member for Meriden accepted that the amendment is covered by amendment No. 41, and we do not think that it is needed. Any communication that is in a sealed tender for a bid or which is part of an attempt to get a contract to publish a magazine in an overseas market would not need to become a tobacco advertisement that reached the public.

Amendment No. 7 raises an interesting matter. Again, we have some sympathy with its aim. We do not want historic tobacco advertisements or items of historic branding value to be caught by the new measures. Each case would need to be judged on its merits, but the Bill is not intended to prevent museums from displaying historic posters or items, or antique shops from displaying old plaques or memorabilia of obsolete brands. Those would obviously not be promoting tobacco products, in the same way as artistic representation on film or stage would not be regarded as promoting tobacco products. An historic object that is offered for sale would not be regarded as an advertisement to promote tobacco products.

The amendment would, however, create a loophole. We could not accept an exemption that allowed Marlboro, for example, to wheel out all its advertisements from the 1960s to promote its cigarettes today; nor would we want tobacco companies to decide to resurrect obsolete brands simply because they happened to have advertisements that were more than 30 years old and exempt from the Bill.

Mr. Ian Bruce

In Committee, I asked whether buildings with old advertisements that were no longer being promoted by a tobacco company were caught by the Bill. As the hon. Lady has had a few days to think about that, will she say whether they will be exempted, or will shops with outside billboards have to take action?

Yvette Cooper

It would depend on whether an historic item that did not promote a tobacco product was being offered for sale or whether an advertisement that had been erected to promote a tobacco product had not been removed. It would not be acceptable to allow advertisements to continue to be left in place simply because someone put them up a couple of years ago and no one had got round to taking them down. It would not be acceptable to exempt them. A billboard that continued to hold an old advertisement because no one had replaced it would be covered by the Bill.

Mr. Hunter

The old Gallaher building in Belfast, which is now used for a different purpose, contains the name "Gallaher" as part of the brickwork. What is the Government's view on that complicated issue?

Yvette Cooper

It would be hard to argue that the purpose and effect of that brickwork was to promote a tobacco product and that it should be covered by the Bill. It is not intended to include historic features such as that.

Government amendment No. 42 ensures consistency between subsections (1) and (2) of clause 8, and I shall clarify the Government's intention. We have said that we do not want to have to draw up regulations on displays. We are relaxed about the way in which products and prices are ordinarily displayed, and we do not intend to restrict that. It is perfectly legitimate to have a certain amount of advertising at point of sale and for products to be displayed, with prices, so that they can be sold, because after all, tobacco is a legal product. Our only purpose in providing powers to draw up regulations is to deal with possible abuses, because we want to prevent tobacco companies from finding innovative forms of advertising that get round the Bill.

Amendment No. 32, which would remove what is, in effect, a trumping provision for the two sets of regulations on display and advertising at point of sale, would create difficulties. If we find that we do not need to introduce regulations on displays, we will not need subsection (4). We would like not to have to introduce those regulations, but if we decide that we need to do so, we will need clear definitions so that we know whether displays count as advertisements, and which regulations should therefore apply to them. We will need to set out links between the two sets of regulations.

Government amendments Nos. 43 and 44 respond to the debate in Committee about the concept of a "nominal sum", and to concern that the definition may not be broad enough to cover all the abuses that we might be concerned about. The hon. Member for Meriden sought to replace the concept of "nominal sum" with that of "market value", and I explained to her in Committee why we could not accept her amendment and how it would affect competitive practices.

Amendment No. 43 will, however, add the words, or at a substantial discount". That might refer to products that are sold, for example, at a discount of two thirds of the ordinary price, but which might not be included within the term "nominal sum". We will have to consult on the interpretation of the term "substantial discount". We would also have to consult if we wanted to introduce regulations. This is another area in which we hope not to need regulations, but we have included the power to make them in case of future abuses.

Government amendment No. 47 makes it clear that the Bill does not apply to anything included in a service regulated under the Broadcasting Acts. That does not apply to tobacco advertisements or to provisions on sponsorship and brand sharing. We want to avoid overlap between the two areas of legislation to make implementation simpler.

A question was asked about the responsibility of airlines. The airline providing the services would be responsible for any advertising, so the test would be whether it was a UK airline. The hon. Member for Hexham (Mr. Atkinson) asked about international publications. I dealt with that when I talked about principal markets.

I propose that the House reject amendment No. 2, and accept the Government amendments.

7.45 pm
Mrs. Spelman

Just before you arrived, Madam Deputy Speaker, I described this group of amendments as involving the whole world, his wife and the kitchen sink. Unfortunately, we have added a few more categories as a result of debating these diverse amendments. Regrettably, I am none the wiser for my probing amendments, except perhaps on the last point about airline code sharing. The Minister was helpful and clear on that point, and as her remarks will be reported in Hansard they will provide guidance to UK airlines and their code-sharing partners, which I am sure they will find helpful.

The Government's description of their amendments has left me considerably more confused. I am grateful to my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) for his remarks, but we have been left completely in the dark about the definition of a principal market. That has not inspired confidence in Government amendment No. 40.

Amendment No. 2 is a probing amendment, and the debate on it has been useful because we have learned that the Government understand our disquiet about the possibility of product placement increasingly being used as an advertising vehicle when conventional forms of advertising are banned by the Bill. However, I was further disquieted when the Minister defined "product placement" as a sponsorship agreement. We are going round and round in circles because the Bill does not clearly define "sponsorship agreement".

The lateness of the hour and the fact that we have to curtail the Report stage in less than half an hour means that it is increasingly unlikely that we will get to the amendments on sponsorship agreement. [Interruption.] The Government imposed the deadline. My right hon. Friend the Member for Bromley and Chislehurst and my hon. Friend the Member for Basingstoke (Mr. Hunter) have tabled an important amendment in that group which seeks to make it clear that a sponsorship agreement is one in which a party to the agreement makes a contribution, in the course of business, towards a public event or activity. I am uneasy about the Government's interpretation of product placement as a sponsorship agreement, which has a weak definition in the Bill that we will probably not now be able to debate. The increasing confusion about those terms demonstrates that the correct course of action is to withdraw the amendment but to register the fact that we are left more confused by the debate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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