§ 7.38 p.m.
§ Lord Lucas of Chilworth
rose to move, That the draft regulations laid before the House on 10th July be approved.
The noble Lord said: My Lords, in moving the Motion standing in my name on the Order Paper, which is quite a serious matter, I should like to take just a little more of your Lordships' time to explain what this is about.
The regulations consolidate and update the existing Cosmetic Products Regulations, which are designed to safeguard users by prohibiting the use in cosmetics of harmful ingredients, limiting the use of other ingredients and prescribing warning labelling where required. The regulations are necessary because, although cosmetics are by their nature usually fairly bland and inactive, the overwhelming majority of women and many men apply them to themselves virtually every day of their adult lives; and, since soap and toothpaste are also cosmetics, children too. We therefore have to ensure that there are no side effects, especially in the long term.
The regulations are the result of a European Community initiative, but had we not been members of the EC we should have needed something fairly similar. The requirements of the various directives which the regulations implement were all agreed by the United Kingdom in Brussels.
The proposed regulations will revoke the existing main Cosmetic Products Regulations 1978 and the Cosmetic Products (Amendment) Regulations 1983, which amended them, both of which were made under the old Consumer Protection Act 1961, and remake them under the more recent Consumer Safety Act 1978, the provisions of which are somewhat stronger on, for example, enforcement, and Section 2 of the European Communities Act. The latter has to be used 713 because a number of points could not be implemented under the powers in the Consumer Safety Act, such as prior national approval of new ingredients.
The regulations will also implement more recent EC directives, particularly on preservatives for cosmetics, ultra-violet filters, methods of analysis of cosmetics and changes to update the schedules of prohibited and restricted ingredients.
The regulations are highly technical, and I do not think it would be helpful to your Lordships or, indeed, to myself were I to take the House through them clause by clause. The significant innovations, however, are these: the power for the Secretary of State to give prior approval for the use of new or previously restricted substances in cosmetics; a number of additions and alterations to the list of prohibited and permitted substances; the list of permitted preservatives and ultra-violet filters for cosmetics, together with the maximum permitted concentrations and labelling; and the incorporation in the same regulations of the requirements on the methods by which cosmetics are to be analysed to check their contents.
The European Community legislation prescribes that the regulations must apply to manufacturers and importers from 1st January 1986 and to wholesalers and retailers from 1st January 1988. However, the provisions on ultra-violet filters implement a later piece of European Community legislation and need only come into operation a year later.
We have fully consulted the Health and Safety Executive and representatives of the cosmetics industry, consumers and local authority trading standards departments, who enforce the regulations. And we have incorporated any reasonable request that did not conflict with the EC primary legislation. The cosmetics industry, in particular, have been most cooperative in the preparation of this regulation. We are aware of no serious problem or difficulty outstanding. In the light of what I have said and in the light of these assurances, I recommend that the regulations be approved.
Moved, That the draft regulations laid before the House on 10th July be approved.—(Lord Lucas of Chilworth.)
§ Lord Stoddart of Swindon
Yes, my Lords, I think the regulations are eminently reasonable and sensible, and the Opposition in fact welcome them. I think they provide proper safeguards for consumers, and of course we are particularly pleased that they have been agreed with the trade.
I will only keep your Lordships a couple of minutes because there is only one particular point I want to raise. That relates to paragraph 9 of Regulation 5, which states that there shall be no proceedings under these regulations unless there has previously been the consent of the Secretary of State or the Director of Public Prosecutions. That precludes trading standards officers from taking cases before the courts and I would have thought, quite frankly, that that was an omission. I would have thought that the relevant people to take cases of contravention before the courts were the trading standards officers. This matter was of course discussed in the First Standing Committee on Statutory Instruments, and I know what the 714 Government's answer was. Their answer does have some merit. Nevertheless, I remain troubled that trading standards officers will have no powers of prosecution, and so does the Opposition.
I therefore wonder whether perhaps the Government would take this away and think about it. I recognise that no amendment can be made tonight, or indeed in the near future, but if at some future time there were some amendments to be made to these regulations, I hope the noble Lord opposite will be able to say to me that he has taken this point on board, that the Government will think about it again, and, if they think it necessary and indeed desirable, will bring forward some amendment at a future date to give trading standards officers the power of taking cases of contravention before the courts.
§ Lord Graham of Edmonton
My Lords, could I try to be helpful to the Minister, as always? I realise that these are opportunities when the Minister can be helpful to the House. May I just say that, seeing for the first time the plethora of requirements which the cosmetics industry needs to comply with, to me as a layman they look onerous. The Minister is going to tell me that it is a piece of cake, and of course provided that the ingredients in the cake are satisfactory it will get its proper qualification.
Clearly it is the intention of the Government, which I would fully support, to make all products absolutely safe and reliable. These regulations have obviously been canvassed very thoroughly and I was delighted to hear the Minister say that full consultations had taken place with consumer organisations and that the industrial and enforcement aspects had also been considered.
One thing which bothers me is the extent to which other members of the Community are as diligent and (dare I use the word?) as honest in seeing that that which comes out of Brussels, which is laid down as a Community enforcement, is as rigorously enforced in other countries as I know will be the Government's intention here.
May I say to the Minister that I am absolutely certain that all the elements he referred to—the industry, the enforcement officers, Government officials, the technical, medical and chemical people who are involved—are behind this. There is nothing more irksome, however, to the Minister, to an industrialist, a shopkeeper or an importer if we as a country are putting ourselves under some strain—I do not maximise it—in order to be fair to everybody, only to find perhaps that in some other country less of a pristine view is taken about complying.
The Minister will be aware that, for example, in the agricultural field, among others, some people say that other countries are not complying with regulations and are getting away with murder. So as members of the Community we try to be fair to those in this country over whom we have direct jurisdiction, certainly to the extent that we try to make sure that in other countries their competitors have the same weight of the law laid upon them.
The second question which would help me, as a layman, is: to what extent were previous requirements flouted whereby enforcement of the kinds of 715 regulations we have here has led to action, to warnings or even to court cases? May I explain further? I recognise the value of regulations of this kind. Clearly they are laid down and need to be complied with. One must assume there is a history of non-compliance, so all I want the Minister to tell us is this. What is the history that is known to the Ministry of the extent to which it has been difficult either to enforce or to police previous regulations? I completely accept the Minister's assurance that these are necessary. They are right not only in the interests of the consumer but also so far as the integrity of the Government is concerned.
Having said that, I wonder whether the Minister could help us, if not tonight then by correspondence, about the extent to which the bureaucracy is involved in creating this legislation and the costs to local authorities—and we are concerned about the costs there because it is no good saying there is a duty laid upon an authority to enforce certain things without giving them the money in the rate support grant to enforce them. I simply want the Minister to say to what extent this is useful and necessary in order to make sure that the consumer gets the best products.
§ Lord Auckland
My Lords, having until last year served on the Statutory Instruments Joint Committee for several years, I must say that I have seldom come across a more formidable document than this, although I believe it is a very valuable one. What worries me is that there are no fewer than 674 exclusions covering what can be added to cosmetics. I wonder whether I could ask my noble friend what department is going to be responsible for this, because some of the almost unpronounceable substances involved are medicines, some are scientific products, and what-have-you. My noble friend said that it would be 1st January 1988 before retailers are brought into this matter. So the small retailer has only three years in which to absorb some formidable details, and I wonder whether my noble friend, if not now, at a later date, can inform me, and if necessary the House, which departments will be involved in making these regulations work.
§ Lord Lucas of Chilworth
My Lords, I am most grateful to the noble Lord, Lord Stoddart, for his reception of what I said about these regulations and for having given me notice that there were one or two issues which worried him. He was worried about the authority which the trading standards officers have. The restriction on the institution of proceedings in Regulation 9(1) applies only to prosecutions for breaches of Regulation 5(1) which provides that,a cosmetic product shall not be liable to cause damage to human health when it is applied under normal conditions of use.This provisions differs from all the other provisions of the regulations, in that it is likely to involve a degree of subjective judgment.
If a manufacturer's product contains a prohibited substance that can be readily established by analysis, and expert evidence can be given, often by means of an analyst's certificate, to prove that the regulations have been contravened, proving that a breach of regulation 5(1) has occurred is by no means so straightforward. In particular, the evidence necessary to secure a 716 conviction is likely to be difficult to obtain and to present in all but the most straightforward of cases. It was therefore thought right to frame the provision with a view to obtaining a consistency of approach in ensuring that prosecutions do not proceed on the basis of inadequate evidence.
Furthermore, the Secretary of State will, of course, wish to be aware of any allegation that a cosmetic product is harmful to health, as opposed to an allegation that it contains a prohibited substance, or a permitted substance in excess of permitted limits but where no damage to health is concerned. The power to make the provision is contained in Section 2(7)(c) of the Consumer Safety Act 1978, and also in Section 11(c) of that Act so far as Northern Ireland is concerned.
Having said that, I should not like noble Lords to go away with the idea that the Government do not have total confidence in the trading standards officers—indeed, exactly the opposite is the case. As noble Lords will know, they have a multitude of duties covering a very wide spectrum of matters, and we are absolutely confident that they conduct their duties in a responsible and proper manner. I accept that the noble Lord, Lord Stoddart, has some misgivings. He has kindly said that there is no question of refusing the order before us this evening, but he has invited me to take away his comments and to draw them to the attention of my right honourable friend the Secretary of State, to which I gladly accede. Obviously, I cannot promise that my right honourable friend will feel an implicit and immediate need to alter these new regulations, but as time evolves the point will be borne in mind.
To turn to the noble Lord, Lord Graham of Edmonton, let me say that I have proper regard for his knowledge and interest in matters of this kind. He said that these regulations are no piece of cake. Indeed, they are not and what we have to do is to strike a fair balance between that which is desirable and that which is possible. He will know better than I that this is the only way to proceed in these matters. I imply no criticism of other member states of the Community when I say that perhaps some do not conform as diligently as we do. But we want to be slightly in front of the rest, because so much of our exporting success depends on an open internal market and one which is accepted by all people. So our interests are directed in that way, rather than towards sheer compliance. That is not to say that other member states do not comply, and I ought to make that quite clear. The noble Lord asked whether, historically, some other member states have flouted not only Community regulations but our own regulations. I do not think it would be very helpful for me to spell out floutings of earlier pieces of legislation.
It might be interesting to recall—I speak from memory and one or two facts may not be as accurate as they should be—that a couple of years ago there were cosmetic products on the market which were aimed at many of the Asians in our community. The regulations applying in the countries from which the products came did not conform with our own regulations on safety in cosmetics. As the noble Lord will know, what I am saying has to do with lead. We were able through the department to get agreement 717 with the importer, and thereby the wholesalers and retailers, to remove those products from the market.
The underlying object of these regulations is to get adequate and proper labelling, and if people buy products they must read the labelling and abide by the directions which are given. Noble Lords opposite, and my noble friend Lord Auckland, will agree that we cannot legislate for people who will not accept the directions. But the directions will be there and I urge anybody who buys a product in this range to accept and abide by the directions. Any abuse of a drug, a cosmetic or anything else which is covered is dangerous, and that is what the labelling will make clear.
My noble friend Lord Auckland referred to this rather formidable document. Because of the number of lists that it contains it is indeed a formidable document. However, I believe my noble friend will accept that the regulations comprise only eight pages of a 71-page document. The other pages include the lists of permitted and non-permitted ingredients. The document is therefore not quite so formidable as it may seem. The co-ordinating department is my own, the Department of Trade and Industry. I can reassure my noble friend that we shall keep very much in mind the matters which arise out of the Cosmetic Products (Safety) Regulations 1984. I believe I have answered all the questions which have been put to me. I hope that the Motion will be agreed to by your Lordships' House.
§ Lord Graham of Edmonton
My Lords, before the Minister sits down, may I say that I am very grateful to him for having taken fully on board the purport of my remarks. I am satisfied that the Ministry is adopting the proper attitude towards this matter. In other words, one is achieving the maximum that it is possible to achieve within EEC constraints and also the maximum that it is possible to enforce sensibly.
There is only one point that I should be grateful if the Minister could deal with, though not necessarily tonight. It may be that I phrased my question awkwardly. I asked the Minister whether we can be satisfied that the industry, the distributors and the importers have been so concerned to comply with the previous regulations that there is little record of noncompliance. If that is so, it will be very good. On the other hand, can the Minister say to what extent the industry, distributors and importers have been unable or unwilling to comply with the previous regulations? In that case there will be a record of non-compliance, warnings and prosecutions. If there is little evidence of this kind, it means that the record of those who have responsibility for these matters is very good. If, on the other hand, it is proved that there has been some reluctance on the part of all concerned to comply with the previous regulations, the Government will need to make sure that the new regulations are complied with.
It may be that there are some statistics. I realise that statistics are not the be-all and end-all of the matter and that it is the atmosphere which is involved which is important. To the extent that the Government have adopted their present stance, it is helpful, but if there are any statistics I should be grateful if the Minister would let me have them.
§ Lord Lucas of Chilworth
My Lords, I shall be happy to find out whether there are any statistics—I confess that I do not have the answer at my fingertips—and let the noble Lord know. Let me end with this remark. The home-based industry and all those who are engaged in this business have cooperated in helping us to formulate the regulations, albeit they are based on European Commission legislation. Whatever may perhaps have given rise to concern in the past will, I hope, not give rise to the same kind of concern in the future.
On Question, Motion agreed to.
My Lords, I beg to move that this House do now adjourn during pleasure until 8.30.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.4 to 8.30 p.m.]