Joint Committee on Statutory Instruments Twelfth Report


TWELFTH REPORT


FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.

1. The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

2. A memorandum from the Office of the Deputy Prime Minister in connection with the Local Authorities (Capital Finance) (Amendment) (England) Regulations 2003 (S.I. 2003/43) is printed at Appendix 1.

3. A memorandum from the Department for Work and Pensions in connection with the Housing Benefit and Council Tax Benefit (General) Amendment Regulations 2003 (S.I. 2003/48) is printed at Appendix 2.

4. A memorandum from the Home Office in connection with the Draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003 is printed at Appendix 3.

TOBACCO PRODUCTS (MANUFACTURE, PRESENTATION AND SALE) (SAFETY) REGULATIONS 2002 (S.I. 2002/3041)

5. The Committee draws the special attention of both Houses to these Regulations on the ground that there is doubt as to whether they adequately implement the relevant Directive.

6. Paragraph (1) of regulation 11, which seeks to implement Article 7 of Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001, prohibits a person from supplying a tobacco product the packaging of which contains any descriptive text which suggests that the product is less harmful than any other tobacco product. Paragraph (2) of that regulation provides that paragraph (1) does not apply where a tobacco product is or is to be supplied for consumption outside the United Kingdom. It was not clear to the Committee whether regulation 11 adequately implemented Article 7, which provides that any descriptive text "suggesting that a particular tobacco product is less harmful than others shall not be used on the packaging of tobacco products". This Article (as has recently been held by the European Court of Justice) applies only to tobacco products marketed in the Community and not to such products packaged in the Community for marketing elsewhere. However, since (contrary to Article 7) regulation 11(2) appeared to have the effect that the prohibition in paragraph (1) did not apply to a tobacco product which is or is to be supplied for consumption in another Member State, the Committee asked the Department of Health to explain whether the underlined words above in regulation 11(2) should have read " European Community".

7. In a memorandum printed in Appendix 4, the Department explains that regulation 11(2) is intended to ensure that enforcement proceedings in the United Kingdom for breach of the prohibition in paragraph (1) can only be taken where tobacco products are supplied for consumption in the United Kingdom. Given that Article 7 of the Directive applies in all Member States and that the implementing legislation in each Member State (which will not necessarily be identical) will apply to products which are supplied in that State, the Department considered that it could appropriately be left to the Member State of destination to determine whether there has been a breach. The memorandum also suggests that there would be practical difficulties for courts and enforcement authorities in the United Kingdom if the prohibition in regulation 11(1) applied for consumption in another Member State, since any descriptive text may be in the language(s) of the Member State of destination, and it would be necessary to determine the meaning of the text and whether it was likely to have a certain effect on the readers of that text.

8. However, it appeared to the Committee that there could be a gap in the prohibition imposed by regulation 11. If the product is supplied in the United Kingdom to a person for consumption in another Member State, the prohibition in regulation 11(1) does not apply. If the implementing legislation in that State were to contain a provision corresponding to regulation 11, the prohibition in that legislation would not apply if that person personally uses that product there: the product was not supplied to him, nor has he supplied the product, in that State. The Committee asked the Department to explain how this result could be consistent with Article 7 of the Directive, since the effect of regulation 11 in this particular case permitted a tobacco product (the packaging of which contains the prohibited description) to be marketed in the Community.

9. In a further memorandum (also printed in Appendix 4), the Department accepts that regulation 11 applies to wholesale supplies for tobacco products as well as retail sales. In relation to the former, the Department reaffirms the view (set out in its earlier memorandum and mentioned above) that it is appropriate to rely on the implementing legislation of the Member State of destination. In relation to retail sales, the Department explains that it proceeded on the basis that a tobacco product sold to an individual in the United Kingdom will usually be consumed in the United Kingdom. Further, a seller of tobacco products (other than by wholesale) would be unable to tell whether they would be consumed in or outside the United Kingdom and therefore would only supply products which comply with the Directive and the Regulations; and even if he could know where products would be consumed, it would be impracticable to have two lines of stock. In the light of these considerations, it considers that in practice there will be no breach.

10. The Committee, while sympathising with the Department's arguments, is not persuaded by them. In relation to retail sales, although it may well be that tobacco products sold to a person in the United Kingdom will usually be consumed within the United Kingdom, this will not always be the case; nor can it readily be assumed that a seller would only supply products which comply with the Directive and the Regulations, given that the latter instrument (unlike the former) does not prohibit the supply of a tobacco product (with the misleading description) for consumption in another Member State.

11. Further, the problem appears to extend beyond this case. If a tobacco product (with the misleading description) is supplied from the United Kingdom to a person in another Member State for consumption there, the prohibition on a person in the United Kingdom in paragraph (1) of regulation 11 would not (by virtue of paragraph (2)) apply. Nor would the prohibition in the implementing legislation in that other State (assuming that it corresponds to regulation 11) apply if the person to whom the product was supplied personally uses the product there, since he has not supplied the product in that State. Similarly, if that person supplies that product to a person in that State for consumption in the United Kingdom or in another Member State, or supplies it to a person in the United Kingdom or another Member State (where the implementing legislation corresponds to regulation 11) for consumption there, neither the supplier nor the recipient who personally uses the product would be in breach of the implementing legislation in the respective States: the supplier has not breached the prohibition corresponding to regulation 11(1) in the implementing legislation of the State because he has supplied the product for consumption outside that State; and the recipient of the product in the United Kingdom or another Member State is not in breach of the implementing legislation there, since he has not supplied the product.

12. In all these cases, the result seems to the Committee to be incompatible with Article 7 of the Directive, since the effect is to permit a tobacco product (with the misleading description) to be marketed in the Community. It also seems to the Committee that these problems could have been avoided, and consistency ensured with Article 7, if paragraph (2) of regulation 11 had indicated that the prohibition in paragraph (1) against the supply of a tobacco product (with a misleading description) does not apply where it is or is to be supplied for consumption outside the European Community. In the result, the Committee considers that there is doubt as to whether regulation 11 adequately implements Article 7 of the Directive. It reports accordingly.

13. Regulation 14(1) prohibits a person from supplying any tobacco product in respect of which the producer has not complied with any requirement of regulations 4 to 10 which relates to that product. Regulations 4 to 10 impose various requirements such as requiring producers to ensure that each packet of cigarettes carries a statement of the tar, nicotine and carbon monoxide yields (regulation 4), that a tobacco product carries specified health warnings (regulation 7) and identification markings enabling the place and time of manufacture to be determined (regulation 10). These provisions seek to implement Article 5 of the Directive. Regulation 14(2) provides that, except in relation to products intended for the travel retail sector, paragraph (1) of that regulation does not apply where a tobacco product is or is to be supplied for consumption outside "the United Kingdom". The expression "travel retail sector" is defined, in regulation 2(1), as meaning retail outlets in the United Kingdom at which duty free tobacco products may be purchased only by people who are travelling on journeys to destinations outside the European Community. The Committee asked the Department to explain the effect of regulation 14(2), and to indicate whether the words "United Kingdom" in that provision should have read "European Community".

14. The Department, in its memorandum of 20 January, explains that the effect of regulation 14(2) is to ensure that tobacco products are not subject to enforcement proceedings in the United Kingdom for breach of the Regulations whilst there are differing requirements in the implementing legislation in the Member State of destination, with regard to the requirements for health warnings and yield statements. Another Member State may have different provisions for implementing the same provisions of the Directive, including different requirements (for example) as to the size of the warnings, so that non-compliance with the United Kingdom implementing legislation does not necessarily mean a breach of the Directive. Given that the United Kingdom authorities are in a position to monitor compliance with our own Regulations, but not those of other Member States, paragraph (2) of regulation 14 limits the prohibition in paragraph (1), breach of which gives rise to the possibility of enforcement proceedings, to products supplied for consumption in the United Kingdom. The Department also explains that the exception for products in the travel retail sector arises because they are products supplied in the United Kingdom and therefore should be governed by the Regulations but, by virtue of the fact that they are taken out of the United Kingdom immediately following purchase, it might be argued that they are products supplied for consumption elsewhere.

15. Article 5 of the Directive, as indicated above, includes requirements as to the labelling of tobacco products. These requirements (as has been held by the European Court of Justice) are confined to products marketed within the Community. However, it seems to the Committee that the effect of regulation 14 is to allow tobacco products, which do not comply with these requirements of Article 5, to be marketed in the Community. For instance, a producer in the United Kingdom, who supplies a product (which does not comply with these requirements in the Regulations) for consumption in another Member State, would not be subject to the prohibition in regulation 14(1). The possibility that the Member State of destination may have different requirements in its implementing legislation as to health warnings and yield statements does not seem to the Committee to be relevant to the question whether the United Kingdom has adequately implemented the Directive.

16. Further, the effect of the exception in paragraph (2) of regulation 14 for products intended for the travel retail sector is that the prohibition in paragraph (1) applies where a producer supplies the product to retail outlets in the United Kingdom at which duty free products may be purchased only by people who are travelling on journeys to destinations outside the European Community. The result seems to be that a producer in the United Kingdom may supply the product to a person for consumption outside the United Kingdom, but may not do so where the product is supplied to a duty free shop in the United Kingdom, even though the product is to be consumed outside the European Community. It seems to the Committee that this seemingly inconsistent result could have been avoided, and the need for the exception obviated, if paragraph (2) of regulation 14 had provided that the prohibition in paragraph (1) does not apply where a tobacco product is or is to be supplied for consumption outside the European Community. In the light of the considerations mentioned above, the Committee considers that there is doubt as to whether regulation 14 adequately implements Article 5 of the Directive. It reports accordingly.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 7 March 2003