HL Deb 07 November 1974 vol 354 cc667-82

7.23 p.m.

THE LORD DRUMALBYN rose to move, That this House takes note of the Fourth and Seventh Reports of the Select Committee (Session 1974) on Prepackaging of Liquids and Prepackaging of certain products (COM(72) 202 and R/2628/73. The noble Lord said: My Lords, first I should like to pay tribute to the quality of the evidence we have received from the Department of Prices and Consumer Protection. It was plain that the witnesses had been closely associated with the progress of the proposals, and had pressed very strongly the British point of view. They had had far-reaching consultations with the trade interests and consumer bodies concerned. Of course, we were under some pressure to catch up with the backlog of Commission documents; but we would not have hesitated to invite the interests I have mentioned to give evidence, should they have wished, had we not had the assurance not only that no further consultation was necessary, but that our own consumer protection bodies had, in general, accepted the proposals, albeit without enthusiasm.

Secondly, I must apologise on behalf of the noble Lord, Lord Rhodes, for not being able to stay for this debate. Indeed, I had counted on at least one member of our sub-committee being present to support me on this occasion, but as the hour is late I am sure noble Lords will forgive him, and for that matter me, for not having mobilised my own support on this occasion. I do not think this debate will give rise to quite the same problems that we had in the last debate where, as I understand it, we were talking about plans for a future product year. We are now dealing with proposals which relate to a continuing process of checking, and the general control of packaging.

There are really three draft Council Directives here of which I am asking this House to take note, two dealing with prepackaging of liquids, the first of which contains two proposals for Directives, and are dealt with in the Fourth Report of the Committee. One is, and I am using the words in the text, For the approximation of laws of the member States relating to prepackaging by volume of certain liquids in prepackages". The second is For the approximation of the law relating to bottles used as measuring containers"; and then there is the other set of proposals which contains a proposal: For the approximation of laws relating to the making up by weight or by volume of certain prepackaged products".

I should say right away that this is a matter which is bound to be of considerable concern both to those who have to produce goods and those who consume them. Although this is quite a late hour for the House, and the Chamber is not quite as full as it can be on some occasions, nevertheless, I should like to get on the Record what the Committee has been doing. I think also it is worth giving an indication in broad terms of what the proposals are about, and of the evidence we have received. I do not intend to go into any great detail, or to deal with this as if one were introducing the Second Reading of a Bill and going through the proposals in detail, for one reason.

Of course, the proposals, when they came to us, were still being negotiated. It was hoped at that time, according to the evidence we received, that some certain modifications towards the British point of view would be conceded by the Commission. I hope it may be possible to-night for the noble Lord, Lord Jacques, who is going to speak in this debate, to give your Lordships some indication whether the efforts of the Government in this respect have been successful. First of all, just to tell your Lordships what this is about, the liquids with which the first proposed Directive is concerned, are wines, ciders and perries, beer, spirits, vinegar and vinegar substitutes, edible oils, milk, waters and soft drinks, non-fermented fruit juices and vegetable juices. The remainder of prepackaged liquids which come under the heading of foodstuffs is covered by the third proposal, and the headings covered by that proposal are listed in the Seventh Report of the Committee.

Your Lordships will note that all these proposals are for Directives, that is for Instruments to be implemented through legislation by member States in so far as their provisions are not already part of the Statutory Law of the member States. Of course, complete liberty as to the form of the legislation is left to the Governments of the member States to decide. The broad purpose is to remove obstacles to trade between the member States in the foods and liquids concerned, and to ensure freedom of access of them as between member States, provided they conform to the Directives when made. It is proposed they should be brought into force by member countries eighteen months after approval by the Council and notification.

In both its Fourth and Seventh Reports the Committee expressed the opinion that the proposals should be drawn to the attention of your Lordships, because of the principle involved, which is the same in both draft Directives. It differs from the principle on which our weights and measures legislation is based.

First I should explain what we are talking about, what this word "prepackages" means. The word "prepacked" of course, is used in our weights and measures legislation and is defined in it, but it is not quite the same with the Directives. The draft Directives define "prepackages" as A combination of a product and the individual package in which it is prepacked.

In the case of the liquids, the subject of the first Directive, the product is prepacked when contained in any kind of packaging prepared in advance and sealed before presentation for sale. In regard to the third Directive, in the case of the products, mainly solids, the elements in the definition are, first, that the product should be in a container or packet; that the contents should be of a fixed amount and cannot be varied without breaking open the container or packet, and, thirdly, that the purchaser should not have been present when the container or packet was filled.

The principle on which Section 24 of the Weights and Measures Act 1963 is based is that the quantity of all goods which are prepacked in a container on which the quantity of the contents is indicated must not be less than the quantity so indicated. If they are less then an offence is committed, with certain defences that I need not go into. I should add that this requirement applies to liquids and solids and alike to weight and volume. In other words, this is the principle of minimum quantity. This means that the control is effective at the point of retail sale; that is, that the local Weights and Measures authorities, now the trading standards authorities, make test purchases in the shops, either as a matter of routine or if there is reason to suspect that an offence has been or is being committed.

The principle on which the two draft Directives is based is that of average contents. Control is required to be exercised by the packer or, in the case of imported prepacked goods, by the importer. The main point of enforcement is the factory or packing centre. The Directives lay down the content requirements in considerable detail but leave the method to member States. Each batch or run at the factory would have to be tested to ensure that the average contents of the prepackages, taking the batch as a whole, is not less than the nominal weight or volume—that is the quantity that is marked on the packet—and a specified number of samples, varying with the aggregate of the batch or length of the run, would have to be examined to ensure that deviation from the average (that is, deficiency errors) do not exceed maximum tolerances. In taking the evidence we did not go extensively into this question of maximum tolerances because of the fact that this had already been discussed with the trade interests and with the consumer bodies. Proper records would have to be kept for inspection by the competent authorities, who are required to carry out also sampling tests on the premises of the packer or importer.

Incidentally, the second Directive divides products into two classes and fixes different levels of tolerances both in relation to the quantity in the packet and in relation to the nature of the product. The tolerances are greater, for example, in relation to products the flow properties or density of which cannot economically be kept constant. In such cases the tolerances are greater. The second Directive lays down that no prepackage having an error in deficiency greater than twice the maximum permitted deficiency shall knowingly be marketed under the EEC symbol—this "E" that has to be put on—and that symbol indicates that all packages bearing it conform with the requirements.

The first Directive on liquids prescribes the permitted nominal contents of bottles and other containers, and the second directive deals with what are called "measuring container bottles". I regret that there is a little confusion between first, second and third Directives. There are two Directives under the first set of proposals and then there is another Directive. This deals with measuring container bottles, which the Directive requires shall be filled to a constant level and so marked as to indicate the nominal contents and the firm that fills them. Each liquid, beer, spirits, milk, whatever, may be packed in several different sizes, the volume in each case being designated in litres. As a transitional measure there is an additional list of "provisionally permitted" signs which may be used up to the end of 1980. The noble Lord, Lord Jacques, will no doubt tell us about any special arrangements which have been negotiated since then, for example, for milk. In the case of products covered by the third Directive, quantities may be indicated during the transitional period in both imperial and international standard measures at the same time; they can carry both the imperial and the metric measures at the same time. There is no issue of metric versus imperial units involved in the proposals, since this country is already moving progressively towards metrication.

Translated into practice, the two principles are known as the minimum system and the average system. The advantage of the minimum system is obvious. The consumer is entitled, come what may, to the quantity indicated on the package. If the quantity is less, the packer commits an offence, and so does anyone who sells the goods or has them in his possession for sale, unless he can produce the necessary defences. But, of course, the consumer pays for this protection. In order to be sure that the quantity indicated is supplied in all circumstances, the packer has to err on the other side. In other words under the minimum system if the packer packs one million kilo packets or litre bottles he will have to supply in order to be sure, perhaps one million and twenty thousand kilos or one million and twenty thousand litres, for which consumers in the aggregate have to pay. Actually, he has to pack more than is indicated on the package. Even so, it is difficult to ensure that no kilo package will ever contain less than a kilo, allowing for loss of moisture, "rogue" units and the like. I refer to kilos merely to avoid confusion between pounds sterling and pounds weight.

One argument in favour of the minimum system is that in theory it should encourage packers to improve their quantity control techniques and machinery. But we are told in evidence that the Department has no evidence that we are ahead of countries which have adopted the average system in this respect. At the end of the day the protection offered to the consumer depends more on the efficiency and determination with which a system is enforced than on the nature of the system, given that it is a reasonable system. If one country considers that another country is not enforcing the system effectively within the Community, a procedure is laid down in the Measuring Instruments Directive of 1971 whereby a complaint may be made to that other country, and failing satisfaction the complainant may take the complaint to the Commission. So that there are safeguards and arguments both ways here.

As I said at the outset, the object of the Directives is to ensure that goods may pass freely between member States. Any goods bearing the prescribed symbol to show that they comply with the system will not be treated as imported goods and will not therefore be subject to quantity checks; it will all be treated as one trading area. Whatever the intrinsic methods of the two systems, it does seem plain to the Committee that the average system is more suitable for inter Community trade. The Directives do not require that all goods covered by them should conform to the system, but only that goods which do conform will have freedom of access, and this is what is called "optional harmonisation".

To quote the evidence we were given: The concept is that a common standard should exist through the whole of the Community, so that producers of a given good in one country could be sure that within the limits of the subject matter in this directive,"— that was in fact the liquids Directive— no legislation in any other member State could forbid freedom of access to those countries. The question is, then, which of the two systems—minimum or average—should be adopted for common use. The United Kingdom and the Republic of Ireland were the only countries to press for the minimum system. Apart from the Netherlands, no support for it was forthcoming from the other member States. Moreover, the Codex Alimentarius, the Food and Agriculture Organisation, the World Health Organisation body of the United Nations, favour the average system. As the witness put it to us—these are questions 147, 151: It became very obvious that we were out on a limb in supporting our system as against the virtual unanimity of the world in favouring … the average system.…. I am quoting the relevant words: I would say it is fairly clear from the discussions we had in the Codex Alimentarius that the great majority of countries have adopted an average system already, and others which have not yet done so, such as the Netherlands, have gone on record then or since as intending to change over. In these circumstances it seemed plain to the Committee that the advantage from the point of view of our trade, not only with other member States of the Community but with the rest of the world, lay overwhelmingly with changing to the average system, however distasteful it may be for us to make a change from a system to which we have become accustomed and which many people in this country would regard as superior, at least in theory.

As I have said, the chief interest of consumers lies in having a system that is capable of being, and is efficiently and effectively, enforced. It is apparent that other member States are broadly satisfied with the average system, and there seems no reason why consumers in this country, once they have become accustomed to it, will not find it equally satisfactory.

The main point, however, is that in the view of the Committee there would, in the long term, be penalties for our international trade if we did not come into line with the proposals in the two Directives—penalties which would outweigh the advantages of adhering to our present system. At the same time, it appears that the interests of consumers will be satisfactorily secured, and that the high standards of enforcement which our trading standards authorities have achieved will be fully maintained. For these reasons, the Committee found it right to support the proposals that are made in the Directives, but because of the question of the principle involved, to invite the attention of your Lordships to them. I beg to move.

Moved, That this House takes note of the Fourth and Seventh Reports of the Select Committee (Session 1974) on Prepackaging of Liquids and Pre-packaging of certain products (COM(72) 202 and R/2628/73).—(Lord Drumalbyn.)

7.45 p.m.

LORD JACQUES

My Lords, the House will be grateful to the noble Lord and his Committee for the work that they have done on this question, and for the Report which they have submitted to the House. From this Bench I would welcome the Report and commend it to the House. With the development of consumer protection throughout the world, there has been increasing weights and measures legislation throughout the world. This has led to an increasing number of differences between the legislation on weights and measures of different States. These differences are a very important technical barrier to international trade. This Committee had placed before them an example showing how our trade in foodstuffs with West Germany was greatly hindered, because of the differences in the weights and measures of West Germany as compared with ours. At this late hour I shall not repeat the example, I shall merely refer your Lordships to it in the evidence placed before the Committee.

These Directives are optional harmonisation solutions. This means two things: it means that each of the States in the Community must allow free access to goods which comply with the Directives; but it also means that they are equally free to operate less stringent provisions. For example, we can still sell our pint of milk; that is a less stringent provision. Furthermore, since we knew that the milk trade had already said that they would either prefer to keep to the pint, or, alternatively, to have the 0.6 litre bottle if they had to metricate, provision has been made, as a result of the work of the United Kingdom representatives, to get the 0.6 litre for milk included in the Directive up to 1980 so far as intra-Community trade is concerned. But so far as the domestic trade of the United Kingdom is concerned, we can sell the 0.6 litre indefinitely, so that our milk trade and our milk distributors are amply covered.

LORD DRUMALBYN

My Lords, does the noble Lord mean 0.56?

LORD JACQUES

No, my Lords, 0.6. The pint is 0.57. We can sell the pint, 0.57, indefinitely because that is less stringent. In addition to that, so far as milk is concerned, we have had put into the Directives 0.6 for intra-Community trade, and that will be there until 1980. Quite apart from that, in the same way as in the domestic market we can sell the pint or 0.57 litre indefinitely, we can sell the 0.6 litre indefinitely if the milk trade so wish.

There are three Directives involved here. First, let me deal with the Directive covering bottles which are used as measuring containers. This Directive sets out the provisions under which bottles can be used as measuring instruments in the filling process. It prescribes the tolerances within which the bottles must be made; it prescribes the means of testing that have to be adopted; and it prescribes the way in which the bottles have to be marked. We have no comparable legislation in the United Kingdom. We take the view that if the filler of the bottle is subject to regulation, and it is known that the bottle is a measuring instrument by all concerned, it is reasonable that the bottle manufacturer should be subject to regulation. We therefore regard this Directive, if adopted by us, as being an important and useful addition to our present weights and measures legislation.

I come now to the second of the Directives, which is concerned with certain prepacked liquids. This Directive controls the way in which prepackages of certain specified liquids are made up for sale. As the noble Lord, Lord Drumalbyn, has said, it includes wines, spirits, beer, milk, edible oil, fruit juice, soft drinks, and vinegar. It also specifies the range of quantities in which they are to be marketed in the intra-Community trade but not in the domestic trade. One good piece of work that the United Kingdom representatives have done in this particular respect is to advocate that the quantities which are going to be used for the intra-Community trade should, so far as possible, be the quantities that are already used in the country of origin. For example, in the case of whisky they have had accepted for intra-Community trade the sizes that we are using now for the bottle and the half-bottle, and that is an example of the useful work that has been done by our representatives.

I come now to the third Directive, which is concerned with prepacked products, mostly solids, but which includes liquids not in the previous Directive. These solids include both food and cleansing materials. The provisions are very similar to those of the previous Directive dealing with liquids, but, there is one important difference, where, in the case of the Directives dealing entirely with liquids, the range of quantities in which the products have to be packed is laid down. That has not been done in this Directive. So far as solids are concerned the quantities in which the products are to be marketed in the intra-Community trade will be subject to a separate Directive which will come later. The drafts which are before the House, particularly the draft relating to solids, is not up to date. There have been many amendments and in due course we shall get more up-to-date drafts.

I come now to the central core of the problem so far as the United Kingdom is concerned. These Directives lay down the methods of control from the point of view of consumer protection. They lay down that it shall be by way of control at the point of manufacture, and that there shall be permitted tolerances according to the product and the size of the sample. They further prescribe that there shall be a declaration upon the package of the average contents, and this will be based upon the sampling, testing and tolerances as at the point of manufacture. This is the most widely accepted practice throughout the world. Only a few countries, of which we are one, are operating a different system. We have not got control at the point of manufacture; we have it at the retail point. We have not got the average system; we have got the minimum contents system. It must be accepted at once that our system is simple from the point of view of the consumer in that she knows that she should receive the quantity which is put on the package. If she is dissatisfied she can go back to the retailer, or in the last resort to the trading standards officer, and complain.

While this is accepted, I would venture to say that there has been gross exaggeration of the benefits of our particular system. If noble Lords will refer to Section 26(7) of the Weights and Measures Act, 1963, it will be seen that we have acknowledged that we have the average, that we have even acknowledged tolerances. That subsection lays down that a reasonable number of samples shall be tested and regard shall be had to the average. So that anyone who is prosecuted could point to the average, and say that on the average he was not defrauding the public in any way. I would say that if the margin of error on the individual articles which compose the sample was not too great he would very likely get away with it. So we have already acknowledged the average and in a small way we have already acknowledged tolerances, for in this particular subsection it is also said that if only one article is tested any inconsiderable deficiency or surplus shall be disregarded. In other words, we have accepted that there is a tolerance which should be completely disregarded.

Therefore, I do not think this change is so violent as it might appear theoretically. Furthermore, there are certain advantages which the consumer can get by having the average system. Certain commodities, for example, tobacco, wine and knitting wools, are liable to change in weight after they have been prepacked but before they are sold. When you have the minimum quantity system at the point of retail sale it is extremely difficult to legislate for that kind of commodity, but if you have the average system at the point of manufacture you can further protect the consumer by legislating for those particular commodities because you have not got the same difficulty.

Furthermore, certain commodities are packed in a juice: for example, canned goods are packed in the juice of the fruit; meat is often packed in a gravy. By our present system we have very little control over the amount of meat or gravy or the amount of fruit or juice, as the case may be. We have to have separate Orders to deal with these questions. With the average system and control at the point of manufacture we could exercise far greater control over the solids which go among the liquid in the case of fruit or meat. There I think there would be two solid advantages for the consumer. But there are also advantages for the manufacturer. At the present time the manufacturer is in difficulty. Any one of the scores of local authorities throughout the country can pick up one of these commodities in any retail shop and have it tested, and from my own personal experience I would say that the attitude taken varies considerably from one local authority to another in, for example, how much regard they would have to "average". Under the average system the manufacturer is not concerned with the attitude which might be taken by all the local authorities throughout the country. He is concerned with the attitude of the local authority inspector in the area in which the goods are manufactured. So that so far as the manufacturer is concerned there is considerable simplicity.

The manufacturer will also get a technical advantage from the averaging system. The enforcement officers will be going to the factories in their area and specifying the kind of routine they want for the purposes of checking. They will act as communicants as between one factory and another, communicating in such a way as to get the best system in all the factories. In so far as the enforcement officers will be able to convey information and will be aiming to get the best system of control in factories in their area, we can hope to get a technically more satisfactory system under the average.

Furthermore, there are advantages to the enforcement officers. Obviously, there are far fewer manufacturing points than retail points, and our very scarce standard trading officers are not going to have their time wasted in travelling from shop to shop. They will go into a factory and spend more time there doing the job for which they are trained, than in travelling from one place to the other. Your Lordships will therefore see that in the average system there can be considerable advantages.

In conclusion, I would suggest that we have to look at this question outside the context of the EEC. Whether or not we go into the Community, in the final analysis it is in our interests as a trading nation that there should be some standardisation of weights and measures legislation, so that it does not act as a barrier as between countries in international trade. In the appropriate United Nations Committee to which the noble Lord referred in a discussion at a recent meeting on this question of the methods of testing for weights and measures, all the countries except three supported the average system with sampling at the point of manufacture.

The three concerned were: first, Holland, who has already declared that she is prepared to accept the average system; secondly, Japan, who had objections only so far as certain liquids were concerned—the objections being extremely limited; and, thirdly, ourselves. The rest are already on the average system with sampling at the point of manufacture. It is therefore in our interest as an important exporter to play our full part in obtaining some unanimity so far as weights and measures are concerned. The only way we can obtain that unanimity is by accepting the average system.

The noble Lord mentioned that each of the States would be allowed 18 months to put Directives into operation once they had been confirmed. I would point out that so far as the United Kingdom is concerned we are given until December, 1979, to put them into operation. So we have far more than 18 months. We have five years plus. Therefore, I assure the House that there will not be any great hurry in amending our legislation because it is not necessary that it should be done in a hurry. There will be the fullest discussions about any contemplated changes with all the interested parties—the enforcement officers, the consumer representatives and the manufacturers—to ensure, in the final analysis, the least difficulties for the manufacturers, the easiest enforcement for the local authorities and the maximum protection for the consumer. In all the circumstances, my Lords, I hope that the House will note this Report and by so doing will at least indirectly be recommending its acceptance.

8.1 p.m.

LORD DRUMALBYN

My Lords, I am grateful to the noble Lord, Lord Jacques, for the way in which he has dealt with the subject and the additional clarification which he has furnished. I found myself in a rather amusing position tonight in that I tried to put forward a balanced view as between the two systems in the belief that the Government had done their best to get our own system accepted elsewhere. I am sure that this was so. But tonight along comes the noble Lord and he makes an almost impassioned support of the system to which we are moving. This is satisfactory, I am sure. It merely confirms that the evidence which we were given and the judgment which we reached was, I am certain, right. I am not certain that the whole country will view it with quite the same enthusiasm as the noble Lord. Never theless, I am extremely grateful to him for the way in which he has presented the arguments in favour of the new system and welcomed the Committee's work on this subject.

I have one matter about which I wish to ask him. The noble Lord mentioned the concessions which were made on the whisky content. As the original draft concerned the present whisky content, which was provisional only until the end of the transitional period, is he now saying that this has been accepted and transferred from the transitional column to the permanent column? I am not certain about this point. I understood him to say that it had now been transferred to the permanent column. Also, I am not clear about what he said on the subject of the transitional arrangements. The impression I gathered was that the eighteen months applied to the general provision, but that we had the special provisional arrangements, such as the use of avoidupois measures, pints and so on, in inter-Community trade until the end of the period. It is important that we should get the matter right so that the public know where they stand. I am sure it will come out in the wash and elsewhere. I am grateful to the noble Lord for what he said tonight.

LORD JACQUES

My Lords, in the case of whisky, I can confirm that the transfer is from provisional to permanent.

On Question, Motion agreed to.

House adjourned at four minutes past eight o'clock.