Tobacco Advertising and Promotion Bill

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Mr. David Taylor (North-West Leicestershire): Will the hon. Lady give way?

Mrs. Spelman: No, I have just about finished.

One ban among 16 will have little impact. The amendment is a practical proposal and I hope that the Minister will accept it.

Yvette Cooper: The hon. Lady said that amendment No. 39 was about closing the loophole with respect to product placement in films. However, the amendment would broaden sponsorship and could create a loophole because, while the effect might be to promote a tobacco product, companies could argue that their purpose was rather to sponsor an event. If the effect is clearly to promote a tobacco product, companies should not be allowed to use that argument. That is why clause 9(1) refers to ``purpose or effect''.

Product placement in films and television programmes was mentioned. Product placement in the vast majority of television series is controlled by existing codes of practice. The placement of tobacco goods in a film, or elsewhere that might not be covered by the codes of practice under television and broadcasting legislation, will be covered by sponsorship and by the clause. An agreement between a broadcaster and a tobacco company to use particular tobacco goods in a film or drama with the intention or effect of promoting that company's brands would be caught by the Bill.

Mrs. Spelman: What happens in the event of a foreign film? How would a British Government make sanctions stick on two American parties—an actor and a tobacco company—who had, perhaps only verbally, struck an agreement about product placement? Will we have censorship in our cinemas?

Yvette Cooper: There are two separate questions: is the agreement verbal or written, and is it an international film? First, the Bill does not specify that the sponsorship agreement must be written; it could be a verbal agreement. If we specified that the agreement had to be written, people would simply make oral agreements, because it would be clear that we were providing an obvious opt-out from the ban.

The second point, about international films, is more difficult, because we do not have extra-territorial jurisdiction on the matter. We do not have the power to prosecute if there is an agreement between a US tobacco company and a Hollywood film for tobacco placement. Distribution and broadcasting of the film in question by persons in the UK would not be caught under clause 9, because no one in the UK, as far as we knew, was party to the sponsorship agreement with which the clause deals.

There is a question about the role that the British Board of Film Classification should play. The matter might most properly be pursued with the board, rather than through the Bill, which does not set out extra-territorial jurisdiction on the matter.

Mrs. Spelman: If an actor strikes a verbal agreement with a tobacco company, there is nothing in writing and they are challenged as having committed an offence, the defence may be that the actor smoked on screen purely because the character was a smoker and that the purpose was not primarily to promote tobacco. Surely we are about to create an enormous loophole. I am interested to hear what the situation would be with the British Board of Film Classification, because it is important that we relate that issue to the Bill. We must ensure that we do not just create a big loophole.

Yvette Cooper: The Bill would cover a sponsorship agreement between a British film and a British company. Clause 9(2) says:

    ``A sponsorship agreement is an agreement under which a party to it makes a contribution towards something, whether the contribution is in money or takes any other form (for example, the provision of services or of contributions in kind).''

I am not clear what the hon. Lady is proposing that would prevent the possibility of an individual, whether an actor or a film director, making a covert deal with a tobacco company that was against the law, that was an offence under this Bill and where they were effectively committing an offence but were not caught doing so. If she has a suggestion as to how it might be possible to amend the Bill to identify more easily situations where that was occurring, then I would look at those proposals. It would be worse to specify that it had to be a written agreement because then we would be encouraging people to avoid making written agreements. Even where there was clear evidence of their having accepted a contribution from a tobacco industry or some benefit from a tobacco industry, we would still not be able to prosecute them under the Bill if we referred only to written agreements. That is why it is right to talk about sponsorship agreements but, of course, if there is a written agreement, it is obviously much easier to find the proof on which to base the prosecution.

The hon. Lady asked about international films. This Bill covers who can be prosecuted in the UK. We do not have extra-territorial jurisdiction so that limits what we are able to do with Hollywood films. The BBFC has responsibility for assessing Hollywood films as they come into this country. It is for the BBFC, rather than this Bill, to deal with how we should control foreign films entering the UK.

Mr. Peter Luff (Mid-Worcestershire): I am genuinely interest in this matter. What action can the BBFC take? This is not a Bill to protect minors from the effects of advertising, it is a Bill to ban tobacco advertising. If a film has quite blatant product placement—I think it was a Superman film which had blatant tobacco advertising, with a Marlboro van crashing in one scene—and a large section of the film can be said to constitute an advertisement, is the Minister saying the BBFC should refuse to issue a certificate for that film because it judges it to be too much of an advertisement for tobacco to be shown in a UK cinema?

Yvette Cooper

: That is not a matter for this Bill and not a matter that we should discuss in this Committee. We could have other discussions with the BBFC, particularly about films for children, but those are separate issues. I have anxieties about censorship and about freedom of artistic expression, which I made clear on the Second Reading. The aim of this Bill is not to prevent artistic expression. The hon. Gentleman raises legitimate issues to explore, but they are not covered under the scope of this Bill.

I return to an issue that is covered under the scope of this Bill—amendment No. 41, which refers to whether or not, if the purpose is to promote a product outside the UK, somebody could be caught by what was done by a third party incidental to the agreement that resulted in the product being promoted in this country. That is an interesting issue. Let us go through the occasions where this might occur. First, if someone had a sponsorship agreement with an event outside the UK, which was broadcast in the UK, it would not be prevented by this Bill because, as we are likely to discuss when we consider clause 11, this Bill does not cover broadcasting. Secondly, if it were a question of a news report of a particular event that took place abroad, that would not be covered by the Act because we would be talking about news reporting rather than a promotion.

If the question is whether a third party publishes a magazine, or puts it on the internet, or publishes promotional material about an event that took place abroad where there was a sponsorship agreement, if the original company could not have foreseen it, or had no reason to suspect, it has a defence under 9(a) and 9(b). The amendment tabled by the hon. Member for Meriden (Mrs. Spelman) is unnecessary. However, it is important that we include anything that could be considered the deliberate promotion of coverage of an event that took place abroad and where the third party might operate in conjunction with the original company or where it could have foreseen that the consequences of their sponsorship agreement abroad would be to promote the tobacco product in this country too.

5.15 pm

Mrs. Spelman: May I put another example to the Minister? If it continues to be legal to advertise tobacco products on Formula 1 cars, helmets and clothing, what about children's dinky toys? The traditional manufacturer of such toys is Hornby—[Hon. Members: ``Corgi.''] I thank male Members for helping me on that. I was not a great one for such toys myself. How would such toys be regarded? They could carry the logo of the tobacco manufacturer. Are they all to be deleted from the British toy market and to be sold in their true colours only abroad?

Yvette Cooper: If a toy being sold in the country were itself an advertisement for a tobacco product, it would rightly be caught by the Bill. We would all be disturbed by the idea of a Bill that set out to ban tobacco advertising and promotion, with particular concerns about children, but permitted adverts to be splayed all over children's toys. That is a legitimate concern. If that is the kind of thing that the hon. Lady wishes to exclude—

The Chairman: Order. We are dealing with an amendment concerning sponsorship agreements. Although it is permissible to mention other matters in passing, I hope that we can stay within the confines of the amendment before the Committee.

Yvette Cooper: If the purpose is to exclude such promotion because it is incidental, that would reinforce our objection to the amendment. That is exactly the kind of advertising or promotion that should be included.

The clause is indeed about sponsorship, Mr. Malins, whereas the earlier clauses referred to advertising. Just as when we talked about film, television and other kinds of media promotions, if the film involves blatant advertising of tobacco products, it would be covered by the Bill whether it was made in the UK, the US or any other country. Although the original makers of the film might not be covered by the Bill, because they were in the US and we do not have extra-territorial jurisdiction, the distributors of the film would be covered. We were talking about examples that are not covered explicitly by advertising, but that we are covering by sponsorship. Sponsorship is not covered by the Bill if it is a non-UK film and the distributors are not covered by something that is about sponsorship as opposed to advertising. I hope that that explanation clarifies clause 9 and the amendments.

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