Tobacco Advertising and Promotion Bill [Lords]

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Mr. Hunter: We have had a reasonably full and lively debate on these amendments and any objective listener will conclude that the Government's position is weak. It is weak with regard to amendment No. 20, because it has been argued that definitions create loopholes, but the Government intend to reject an amendment that would remove an unnecessary and unwanted definition from the Bill.

The Minister's remarks about amendment No. 9 were also unconvincing. Trade magazines are sold in general retail outlets, but only a few of them are purchased because they are aimed at the people in the trade, rather than the general public. The Minister's argument that to allow that to continue would demonstrate that the general public was being targeted does not hold up.

I am most disappointed with the Government's defence against amendment No. 10. It failed to convince me. I do not propose to repeat the arguments, which have been well expressed. Reduced to its essence, it is clear to anyone who knows anything about the subject that the annual report is an advertisement. Likewise, to form a judgment on a company, it is essential to have marketing and advertising details. It is simply wrong for the Government to exclude, or ban, such information from investors.

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On such occasions, it is important to concentrate one's power. I beg to ask leave to withdraw amendments Nos. 9 and 20, but we want to press amendment No. 10 to a Division.

4 pm

The Chairman: Amendment No. 20 cannot be withdrawn because it has not been moved.

Mr. Hunter: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 10 in page 2, line 16, after 'are', insert 'investors in,'.—[Mr. Hunter.]

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 12.

Division No. 4]

Flook, Mr. Adrian Hunter, Mr. Andrew Loughton, Tim
Ruffley, Mr. David Wilshire, Mr. David

Barrett, John Cooper, Yvette Fitzpatrick, Jim Hall, Mr. Mike Hopkins, Mr. Kelvin Khabra, Mr. Piara S.
Moffatt, Laura Murphy, Mr. Jim Robertson, John Taylor, David Ward, Ms Claire Wishart, Pete

Question accordingly negatived.

Tim Loughton: I beg to move amendment No. 11, in page 2, line 19, at end insert—

    '(ab) if it is contained in a specialist publication solely directed at existing adult users of tobacco products and containing editorial and material only relating to such products,'.

The Chairman: With this it will be convenient to discuss the following amendments: No. 12, in page 2, line 20, leave out from 'in', to end of line 22 and insert

    'a communication to an individual who has in writing provided to the person who, apart from this subsection would commit an offence, his name and address, his age expressed as being over 18 years, and a wish to receive communications of the kind to which this subsection relates, and has not in writing subsequently withdrawn that wish, or'.

No. 14, in page 2, line 22, after 'product', insert—

    '(ba) if it is not for cigarettes or hand-rolling tobacco and is, or is contained in, a communication which is sent or transmitted by a specialist tobacconist to an identified individual,'.

Tim Loughton: We move on to another specialist technical area relating to specialist publications and the treatment of advertisements in them, especially as it involves other people in the trade.

We propose three amendments, which have been grouped together. Amendment No. 11 would add an additional provision that would exclude from the prohibition in the Bill anything that falls within its terms.

There are several specialised tobacco publications, I am led to believe, but I have never had the pleasure, or the boredom factor, of having to indulge in them. One is called Cigar Aficionado and is published in New York. Another, which sounds like the sort of thing that appears on ''Have I Got News For You'', is called Cigar World and is published in the UK. Neither of

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those are trade magazines as such, but they are aimed at discerning consumers.

Under the Bill, I understand that Cigar Aficionado, which is published overseas, and other magazines like it would be allowed to circulate in the United Kingdom, whereas Cigar World, which I am sure is a good read, would not. What is the benefit of a disproportionate clause that would discriminate against a domestic publication? My hon. Friends have alluded to the recent ruling in Sweden—the Swedish Consumer Ombudsman v. Gourmet International Products AB—which is relevant to the Bill. The European Court of Justice also gave a ruling. Will the Bill require changes in the light of those judgments?

The opinion of the Advocate General of the European Court and the judgment of the Swedish district court are relevant to not only the amendment, but other provisions in the Bill. They draw into question the Secretary of State's statement that the Bill is compatible with the European convention on human rights.

GIP publishes a magazine in Sweden called Gourmet. It is available by subscription and 90 per cent. of its 9,300 subscribers are traders, manufacturers or retailers, while only 10 per cent. are private individuals. The magazine is also available by retail sale. The subscribers' edition of the magazine, which was the subject of the case, contained three pages of advertisements for alcoholic drinks—one page for red wine and two pages for whisky. Those pages were not included in the edition that was sold in shops, which was intended for the general public.

The Swedish ombudsman, who is responsible for consumer protection, applied for an injunction to restrain the publishers from printing an advertisement that was contrary to national provisions that aim to reduce health risks caused by alcohol consumption. The Stockholm district court considered that an interpretation of the provisions of the treaty of Rome was necessary, stayed the proceedings and referred the case to the European Court of Justice for a preliminary ruling.

The publishers of Gourmet argued that the proceedings were based on legislation that was contrary to articles 30 to 37 of the treaty of Rome on freedom of movement of goods and articles 59 to 66 on freedom to provide services. The Advocate General's view was that a ban that extended to advertising in specialist food and drink magazines was disproportionate, which is the essence of the amendment. He found that individuals who chose to read a specialist magazine were highly unlikely to be incited to drink more alcohol as a result of the advertisements, which is partly the point that we made about annual reports. The position of a person who purchased such a magazine was likened to that of a person who had specifically requested advertising material from a producer—in other words, no different to the provisions in clause 4(1)(b) of the Bill.

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The Advocate General also noted that commercial advertising comes within the scope of article 10 of the European convention on human rights, which guarantees freedom of expression. Although the applicant did not raise ECHR grounds during the case, the Advocate General said that article 10 was clearly in play—this emphasises the disproportionality of the measure—and the European Court of Justice found that the prohibition on advertising constituted an obstacle to trade between member states, which is prohibited by article 30 of the treaty of Rome. Although such an obstacle could be justified by provisions on the protection of public health in article 36 of the treaty, the European Court of Justice considered that the national court was better able to investigate whether the prohibition of advertising was proportionate and whether the objective could be achieved by less extensive prohibitions or restrictions.

The European Court of Justice also found that although the measure was non-discriminatory, it had a specific effect on the cross-border supply of advertising space and thereby constituted a restriction on the freedom to provide services under article 59 of the treaty although, again, that could be justified by protection of public health under article 56. I am sorry that this is a little technical, but the recent ruling is highly pertinent and requires a response. It had to be decided whether such protection could be provided by measures that had less effect on intra-community trade. It was left to the national court to decide whether the prohibition of advertising was proportionate and whether the objective could be achieved by less extensive prohibitions or restrictions.

Last month, the national court published its judgment. It applied the proportionality test and found that the ban interfered with the free movement of goods and services and that the evidence on the effect of advertising on consumption was inconclusive. Consumption was not increasing and any increase in consumption resulting from the removal of the advertising ban would be negligible, because such advertising had minimal effects, if any. Editorial material is not restricted in any way, and the population is exposed to advertising via the internet, foreign television channels and at the point of sale.

Although the case concerned alcohol, there is a distinct corollary with tobacco. The court therefore concluded that the ban on advertising contravened articles 28 and 49 of the treaty and went beyond what was necessary to achieve any legitimate public health goal. In all substantial respects, the case could legitimately refer to tobacco products.

The relevance of the opinion of the European Court and the judgment of the Swedish national court are of immense importance to the Bill and to the draft directive being considered by the European Council and the European Parliament. The judgments reinforce the necessity that, in human rights terms, although restrictions can be justified on the grounds of public health, any restrictions must be both necessary and proportionate. In the Swedish case, the courts found that they were not. The same could well be found of certain restrictions in this Bill, not least the

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prohibition of tobacco advertising other than in publications or communications permitted by clause 4 (1)(a) and (c). We believe that the Bill is vulnerable to successful challenge in the European and United Kingdom courts on human rights grounds.

My amendment goes some small way towards correcting the Bill's excesses. It is inconceivable that publications devoted to tobacco products would be bought by non-smokers, those attempting to give up smoking or children. The Minister referred earlier to retailers who may stock such publications. Members of the public do not generally pick up such things, but those with an interest in the tobacco industry may wish to buy them from a newsagent if they are not available on subscription.

There is no sound reason why specialist tobacco publications for which the United Kingdom is the principal market should be prohibited, but similar publications with large UK circulations for which the UK is not the principal market should be permitted. It is simply anti-competitive and rather ridiculous, which goes to the heart of the problems that we have with this part of the Bill.

The essence of amendment No. 12 is to allow people who have provided written permission for details about tobacco products to be sent to them, to continue to do so on an ongoing basis, without constantly having to repeat that request. That is straightforward. We are dealing with intelligent, informed adults who have an active interest in tobacco products and want details about them. We are not dealing with children or people who may be seduced into smoking or smoking more because of access to a specialist publication.

I am sure that many hon. Members will be familiar with amendment No. 14 because of a letter-writing campaign organised by the Association of Independent Tobacco Specialists. The association has written to many members of the Committee and to hon. Members representing constituencies in which such specialist retailers are based—some 350 establishments. I am happy to table this amendment, which is about cigars and such products, but not cigarettes or hand-rolling tobacco. We are not talking about big fat cat tobacco manufacturing companies that Labour Members seem to have such a downer on, but about a few small specialist retailers who make an honest—and, at the moment, not particularly easy—living. They are legitimately carrying on their businesses, and there is no attempt to close them down. The Association of Independent Tobacco Specialists has not opposed the Bill, but it is worried that, despite the Government's assurances, its businesses will be hit. It also points out that cigar smoking is not prevalent among young people. It is primarily an adult pursuit.

4.15 pm

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