Tobacco Advertising and Promotion Bill

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Mr. Ian Bruce: I am still struggling to work out where the Bill allows people to advertise their product at point of sale and where it states what is an advertisement. Simply having a cigarette packet in view clearly is an advertisement, but where does the Bill allow the physical activity of retailing to go on, where somebody goes to purchase a packet of cigarettes, or whatever, outside a specialist tobacco shop? Where is the defence in the Bill?

Yvette Cooper: I was rapidly flicking through the Bill as the hon. Gentleman was speaking. Clause 4(2) states:

    ``The display or advertisement in a place or on a website where tobacco products are offered for sale, in accordance with any requirements specified by the appropriate Minister in regulations, of the products offered for sale there and of their prices is not an offence under this Act.''

We had a detailed discussion of that under clause 4; we have in fact already amended it. I am reading from the original draft of the Bill; we have already passed Government amendments that make it clear that there is a distinction between advertising and display.

We will return to the issue. I have already signalled the Government's intention to table further amendments to make clearer the issues around display, because we need to separate out some specifics on both display and advertising. We have made it clear that advertising at point of sale is to be permitted, but subject to regulations on which we will of course consult. That applies to specialist tobacconists selling outside their shop in the same way as it does to everyone else.

Amendment No. 31 refers to the proportion of sales of tobacco products required for a business to be counted as a specialist tobacconist. In the end, we draw the line where we choose, but it is sensible to say that someone can be counted as a specialist tobacconist if the majority of the products sold are specialist tobacco products. To make it the majority—50 per cent.—seems to me perfectly reasonable and to draw the line any lower would make it hard to see whether people were specialist tobacconists rather than some other sort of vendor who also sold some specialist tobacco products. Most people would regard 50 per cent. as reasonable, because that allows us to say that the majority of products sold by a shop are specialist tobacco products.

Mrs. Spelman: Does the Minister accept the practical point, which is that the differential excise duty may drive the split in the sort of products that a business vends? That is getting perilously close to Government dictating what a specialist supplier should or should not sell. That will be the effect of regulation.

Yvette Cooper: In the end, they can sell what they like. We are saying that they can have a defence under the Bill if they sell more than 50 per cent. specialist tobacco products. If they do not, that is fine; they have the right to sell whatever products they want, but if they do not sell more than 50 per cent. specialist tobacco products, we will not count them as a specialist tobacconist for the purposes of the Bill and we will not give them a defence. That is reasonable.

I am still struggling to understand the purpose of amendment No. 34. The Bill states that businesses will be assessed for as long as they have been established, if they have not been established for 12 months. It is a question not of the overall volume of sales, as I accept that that may grow during the year, but of what proportion of the sales comprises specialist tobacconist products—be it for three months, six months, or whatever period. We could not legitimately make the assessment on the basis of any information other than sales. I am not clear what the difference is between making the assessment on the basis of the three months or of a pro rata projection from that three months. In the end, the proportion of sales that are specialist tobacco products within that three-month period is what counts—whether or not it is multiplied in a pro rata calculation for 12 months. I do not understand what the amendment would achieve and I reject it for that reason.

Amendment No. 46 is an attempt to clarify the sort of advertising and information provision that specialist tobacconists will be allowed. We have had the discussion before so I will reiterate what I said and give an example as further clarification.

We intend to prevent specialist tobacco companies not from advertising their business but from advertising their tobacco products outside their premises. For example, they will be allowed to place an advertisement in the Yellow Pages that says something like, ``J.R. Hartley, Specialist Tobacconist, sells cigars, pipes and snuff''. However, a half-page advertisment that said, ``J.R. Hartley, cheapest Davidoffs in town, half-price snuff, finest range of sophisticated cigars—smoking a Cuban cigar makes you sophisticated'', would clearly be promoting tobacco products. We do not want to permit such promotion and that is the entire point of the Bill. It is clear from our wording that specialist tobacconists will be allowed to provide information and listings in the Yellow Pages, but not to use it to promote and advertise tobacco products.

The hon. Member for South Dorset asked a question about retail, but I was not entirely sure what his concern was. A defence under clause 4(1)(a) states that

    ``a communication made for the purposes of the tobacco trade''

is not covered by the Bill, as long as it is

    ``directed solely at persons engaged in any capacity in that trade''.

If the communication is directed more broadly, beyond that trade, it is not covered by the defence and will be caught by the Bill.

Mr. Ian Bruce: People who go to a specialist tobacco wholesaler to buy other products may see the advertising and promotion. I wonder how the Government will protect the wholesaler specialising in tobacco sales, who is not covered by the retailer defence—[Interruption.] It is difficult for me to concentrate on such a difficult matter with constant heckling from a sedentary position. I cannot hear a word that the hon. Member for Dundee, West (Mr. Ross) is saying. If he wants to intervene, I shall be pleased to take the intervention.

Mr. Ernie Ross: It is a contradiction in terms—

The Chairman: Order. The hon. Member for South Dorset was intervening, and we cannot have an intervention on an intervention.

Yvette Cooper: The significance of the word ``retail'' is still not clear to me. I give way to my hon. Friend the Member for Dundee, West.

Mr. Ross: If the person is a wholesale specialist tobacconist, all he will be wholesaling is specialist tobacco products.

Yvette Cooper: My hon. Friend is right. We want to prevent people who are intending to buy other products that are not related to tobacco from being bombarded by tobacco advertising. That is why a specialist tobacconist is defined as a shop in which more than 50 per cent. of sales derive from tobacco products. That is to minimise the possibility of someone intending to buy goods that are not related to tobacco. If people intend to buy such items, why enter a specialist tobacconist? The whole point of the clause is to ensure that specialist tobacconists are those that deal with tobacco products, thus people who enter such premises will have already decided that they are interested in tobacco products. Under those circumstances, tobacco advertising within such premises is acceptable.

Mr. Ian Bruce: The hon. Lady and her hon. Friend have obviously missed my point that a specialist wholesaler may sell two different products. For example, it may sell fine wines and expensive alcohol and specialist tobacco products at the same premises. A customer may enter premises to purchase only alcohol products, but be affected by tobacco advertisements. It is strange that only retailers have the defence whereby they can advertise such products rather than wholesalers in the same position.

Yvette Cooper: That is because wholesalers have a different defence under clause 4(1)(a), which comes into effect if they have a

    ``communication made for the purposes of the tobacco trade and directed solely at persons engaged in any capacity in that trade''.

The retail defence is set out for specialist tobacconists that are engaged in the retail trade. We should distinguish between wholesalers and tobacco advertising within specialist tobacconist retailers.

Mr. Bruce: What will happen when a customer who goes into a wholesaler that is not a specialist tobacconist to buy fine cognac is offended because he is bombarded with promotions and advertisements for tobacco products and wants the wholesaler to be prosecuted? The wholesaler will have no defence.

Yvette Cooper: The wholesaler has the defence if communications are directed solely at people engaged in any capacity in the tobacco trade. It is reasonable that wholesalers have a defence in respect of those involved in tobacco trading and not other matters. I do not see a problem. However, I shall scratch my head and reflect further on the matter to see if I can come up with a problem because the hon. Gentleman is being so persistent.

I think that I have covered all the amendments in the group. The Government cannot accept any of them.

Mrs. Spelman: You have given us advance warning that you will not allow a stand part debate, Mr. Malins, so my remarks will comprise general observations on clause 6. Our proceedings have been disappointing, given that we have discussed matters in a good-natured way. We have tried to be constructive. To sum up what the Minister said—basically, she has told specialist tobacconists that they must lump it. She showed little sympathy.

Mr. Ernie Ross indicated assent.

Mrs. Spelman: The hon. Gentleman nods. It is my nature to be consensual and I do not usually make such remarks, but the Government's attitude showed arrogance. Commercial activities that people have carried on legitimately for many years will suddenly become illegal. That is a big change for practitioners to assimilate and small businesses will be worst affected. The Government said that they had listened to small business. What I heard was a remarkably hard-hearted and hard-nosed attitude. There was little appreciation of the practical arguments that I was trying to put forward.

11.45 am

The total rejection of all my amendments could have interesting and unforeseen consequences. To achieve a better defence under the Bill, suppliers of specialist tobacco products could be forced to set up a shop; they could then at least cover themselves by saying, ``At least we have a shop''. That might produce a rash of tobacconists on the high street—who knows? That may be the effect of going about the legislation in a heavy-handed way without taking account of the practicalities.

There may be another effect. The differential excise duty means that retail sales have been bumped up by sales of cigarettes with the higher excise duty on them. One has to sell a lot more cigars and other specialist tobacco products now to qualify to be a specialist tobacconist. It is not the tobacconists' fault that there is differential excise duty on tobacco products: they have no control over that. It is within the gift of the Government to vary the excise on different tobacco products. Their stance is remarkably rigid.

My amendments on specialist tobacconists have been rejected, but I still find it difficult to imagine a time when the youth of today will have the disposable income—and the desire—to buy cigars. The Minister must have had a privileged education: at her school, youngsters had enough money to buy cigars to smoke behind the bike shed. Where I came from, they jolly well did not—there was no way we could get that sort of money. Anyone who smokes—and I do not—knows that one cannot chain-smoke cigars without feeling queasy by the second or third.

The Minister's argument lacks common sense and a user-friendly attitude towards the small players who will be hit hard by the legislation. She could have come a little way towards meeting me. I do not feel so strongly that I am prepared to press the amendments to a vote. The Government have a socking great majority—[Interruption.]

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Prepared 6 February 2001