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Tobacco Advertising and Promotion Bill


 

These notes refer to the Tobacco Advertising and Promotion Bill as brought from the House of Commons on 14th February 2001 [HL Bill 26]

                                                  

 

TOBACCO ADVERTISING AND PROMOTION BILL



EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Tobacco Advertising and Promotion Bill as brought from the House of Commons on 14th February 2001. They have been prepared by the Department of Health in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The Bill bans advertising and promotion (including sponsorship) of tobacco

products, with certain limited exceptions. If passed it will come into force on a date or dates to be appointed by the Secretary of State. The Bill will apply to England, Scotland, Wales and Northern Ireland.

BACKGROUND

4.     The United Kingdom Government entered office with a manifesto commitment to ban tobacco advertising. Initially the government proposed to fulfil its commitment through implementing Directive 98/43/EC banning tobacco advertising, promotion and sponsorship. Two consultation documents on implementing the tobacco advertising ban were published, on 10 December 1998 (at the same time as the White Paper "Smoking Kills") and 17 June 1999. The latter consultation document included draft regulations to implement the Directive. However, the Directive has been annulled by the European Court of Justice on the grounds of an incorrect legal (treaty) base. Nevertheless, the ban on tobacco advertising remains part of the Government's tobacco control strategy, as set out in "Smoking Kills", published on 10 December 1998.

5.      The Government believes that an advertising ban could reduce tobacco consumption in the longer term by 2.5%. This would translate into an estimated 3000 lives per year saved.

THE BILL

6.     The Bill defines "tobacco advertisement" as an advertisement whose purpose or whose effect is to promote a tobacco product. The term "advertisement" is not defined and bears its natural meaning. The Bill covers direct advertising (for example, posters, billboards and press advertising) and other forms of promotion, such as direct marketing. It also covers so-called brandsharing, a form of indirect advertising whereby non-tobacco products use the tobacco branding of a particular tobacco product as a means of promoting that tobacco product (and thereby widen the promotion of the tobacco product). The Bill also covers media other than paper, eg electronic communications (such as the internet) and video. It does not cover television and radio which are already subject to regulation under the Broadcasting Acts or other means. The clause also applies to publication by electronic means.

7. The Bill sets out in separate clauses prohibitions on tobacco advertising, free

distributions (including coupons), sponsorship and brandsharing. The reason for such a comprehensive ban is that anything less far-reaching would leave considerable scope for promotion of tobacco products, as has been demonstrated in other countries.

COMMENTARY ON CLAUSES

Clause 2: Prohibition of Tobacco Advertising

8.     This clause makes it an offence to publish a tobacco advertisement in the United Kingdom. The clause also covers advertising of brandshare products. Essentially anyone who is involved in the commissioning, design, printing, publishing, sale or distribution of such an advertisement could be guilty of an offence. This makes each member of the chain potentially liable, subject to the available defences in clauses 5 and 6, from the tobacco manufacturer down to those who distribute or sell an advertisement.

9.     The Bill does not make incidental commentary on smoking or tobacco products an offence. It is not intended that the public at large, journalists etc should be prevented from commenting on tobacco products or that the representation of smoking and tobacco products by those engaged in creative or artistic pursuits (actors, painters, producers etc) should be prohibited.

10.     Subsections (1) and (2) include the phrase "in the course of a business" to make it clear that the Bill does not apply to individuals acting in a private capacity.

11.     Subsection (3) provides that the offence of distributing may be committed by anyone involved in the transmission of a tobacco advertisement by electronic means subject to the defences in clause 5 and 6.

12.     Subsection (4) exempts persons who do not carry on business in the United Kingdom from the offence of publishing (or causing publication) where they do so via the internet. This reflects the fact that access to a website cannot be controlled by its originator.

Clause 3: Advertising in Newspapers, Periodicals, etc

13.     This clause makes clear that in the case of advertising in the press, anyone in the chain from commissioning to selling an offending publication could also be guilty of an offence. This includes proprietors, editors and advertising agencies. The clause also applies where publication is by electronic means. Defences are set out in clause 5.

Clause 4: Advertising: Exclusions

14.     This clause sets out the exceptions to the advertising ban set out in clauses 2 and 3.

15.     Subsection (1)(a) deals with communications between those engaged in the sale of tobacco products. As sale of tobacco products to adults is lawful, appropriate commercial communications are not prohibited. So long as these communications do not reach the wider public they will be excluded from the ban.

16.     The Bill does not seek to define the tobacco trade more closely, but it will cover manufacturers, wholesalers, retailers and distributors, whether or not they also manufacture, sell or distribute other products. In the final analysis, the courts would determine who is in the tobacco trade.

17.     Subsection (1)(b) allows information on tobacco products to be sent to consumers who request that information. However, this does not permit tobacco advertisements to be sent to all consumers on a database; each consumer must individually request that information on each and every occasion. A request for information cannot be considered as a request for further information in the future.

18.     Subsection (1)(c) deals with publications whose principal market is not the UK market which are exempted from the general ban. For example a publication in a language other than English is very unlikely to be classed as principally for the UK market. However, in the final analysis, the courts would decide the meaning of "principal market" in any particular case. Internet versions of foreign publications are also covered by this exemption.

19.     Subsection (1)(d) excludes from the ban inflight magazines on non-United Kingdom airlines. This separate exclusion reflects the fact that they are not aimed at a clearly defined national market. The definition of "United Kingdom airline" builds on that contained in section 4(2) of the Civil Aviation Act 1982 but excludes airlines whose principal place of business is in the Channel Islands and the Isle of Man (as determined by the Civil Aviation Authority).

20.     Subsection (2) provides that advertising where tobacco products are offered for sale is allowed as long as it is in accordance with regulations to be made by the Secretary of State or the Scottish Ministers. This covers shops and sales over the internet. In shops, the intention is to allow advertising of the products around the till area, typically on a gantry in a corner shop or in a kiosk in a supermarket, but to ban the advertising material elsewhere on the premises, for example in window displays. The Secretary of State will consult on regulations to set out further, detailed conditions to ensure that this exemption is not used to widen the scope of permitted advertising. It is intended that the regulations will also clarify how the exemption applies to sales over the internet to ensure that responsible e-commerce in this area is not hindered.

21.     Subsection (3) provides that the regulations referred to in subsection (2)(a) may define the meaning of "place", to make it clear the limit of permissible advertising; for example the place where tobacco products are sold would not mean the whole of a large supermarket.

Clause 5: Advertising : Defences

22.     This clause sets out the various possible defences for anyone charged with an offence under clause 2 or 3.

23.     Subsection (2) provides a defence in relation to an advertisement whose effect is to promote a tobacco product where it could not reasonably be foreseen by the defendant that it would have that effect. In most cases it would be expected that this would only function as a defence once, as the effect would be known thereafter.

24.     Subsection (4) provides a specific defence for distributors who did not know and had no reason to suspect that what they distributed infringed the ban. It applies only to distribution other than by electronic means - the defence for electronic distribution is in clause 5(6).

25.     Subsection (5) provides a defence for an Internet Service Provider (ISP) who publishes by electronic means that he was unaware that what he had published or caused to be published was or contained a tobacco advertisement. This reflects the fact that internet service providers generally are not aware of the vast majority of the material which they cause to be published and therefore cannot reasonably be held liable until they become or are made aware of a particular advertisement.

26.     Subsection (6) provides a defence for someone involved in the electronic transmission of a tobacco advertisement to prove that he was unaware that what he distributed or caused to be distributed was a tobacco advertisement, or that once aware of it he was unable to prevent the further distribution of the tobacco advertisement, or that he did not carry on business in the UK. The first two defences reflect the reality of electronic distributors such as providers of telephone lines who will be unaware that they are distributing an advertisement and cannot prevent its further distribution. The third is an equivalent to the defence in clause 2(4) for publishing.

27.     Subsection (7) provides a defence for a seller of a publication where he did not know and had no reason to suspect that the publication contained a tobacco advertisement. This is to protect a seller such as a newsagent from having to look through all the publications he might sell to ensure that no such advertisement appeared. Again once the seller's attention is drawn to the advertisement he would need to remove the publication from sale to avoid committing an offence.

Clause 6: Specialist Tobacconists

28.     Specialist tobacconists may continue to advertise specialist products (ie other than cigarettes and hand-rolling tobacco) within, and on the outside of, their premises. This reflects the fact that they sell products which are generally not bought or used by children and young people. There are some 350 such shops in the country.

29.     Subsection (1) permits advertisements of specialist products (not cigarettes or hand-rolling tobacco). It also enables the Secretary of State and the Scottish Ministers to make regulations to specify further conditions in relation to advertising in specialist shops to ensure that this exemption is not used inappropriately.

30.     Subsection (2) sets out a definition of specialist tobacconists. These are retailers who specialise in non-cigarette and hand-rolling tobacco products - specifically, cigars, snuff, pipes, pipe tobacco and smoking accessories. These are products which do not appeal to children. The sale of these goods must account for the principal part of the specialist's income; those who merely sell cigars, pipe tobacco and smoking accessories as a sideline will not qualify.

31.     Subsection (3) sets out the basis for calculating whether a shop qualifies for the defence in subsection (1). Subsection (3)(b) ensures that new specialist tobacconists may benefit from this defence.

32.     Subsection (4) clarifies the meaning of "shop". Some specialist tobacconists operate from shops within shops, for example in a department store. Such shops within shops may comprise a self-contained cigar room and a counter area which is not physically marked off from the remainder of the store; where this happens advertising for cigars and other specialised products may only take place within or immediately outside the self-contained area. The display elsewhere of all tobacco products will be subject to clause 4(2) and the regulations pursuant to it. This does not prevent there being signposting for customers elsewhere in the store to indicate where the specialist tobacconist is located, so long as that signposting does not itself constitute a tobacco advertisement (eg if it is covered in branding).

Clause 7: Developments in Technology

33.     This clause enables the Secretary of State to make an order to amend the provisions of the Act concerning publication or distribution of tobacco advertisements by electronic means in the light of technological developments if he considers this to be appropriate. The reason for taking this power is that the pace of technological change in this area makes it very difficult to predict what new means of publishing or distributing may emerge.

Clause 8: Displays

34.     This clause provides that the Secretary of State may make regulations concerning the permissible display of tobacco products and their prices at places or websites where they are offered for sale. The Government regards the current practice of storing tobacco products for the most part in a gantry with minimal advertising as perfectly satisfactory and has no current plans to make regulations under this clause. However, the Government feels that it is important to have the power to control displays if displays of tobacco products start to become quasi-advertisements.

35.     Subsection (1) makes it an offence to display tobacco products if the display does not comply with any requirements as may be specified in regulations. This includes electronic displays on websites.

36.     Subsection (3) provides that the regulations may set out the meaning of 'place'. This is a parallel provision to clause 4(3).

37.     Subsection (4) requires that any regulations made under this clause must clarify how displays which amount to advertisements are to be regulated. Given that the Government would have regulated both for advertising and displays at points of sale, it would be essential to specify under which regulatory regime displays which also amounted to advertisements were to be treated.

Clause 9: Prohibition of Free Distributions

38.     This clause bans any free distribution whose purpose or effect is to promote a tobacco product. Experience elsewhere has been that where other areas of marketing are banned, the focus of tobacco marketing moves to direct marketing techniques such as free distributions, for example in clubs and bars. The effect of the clause will be a ban on the giving away of branded products such as cigarette lighters so as to reduce the amount of tobacco branding on display to the public as much as possible. The clause also bans the use of coupons such as the schemes whereby coupons inserted into cigarette packs are collected by customers and can later be redeemed for tobacco or other goods.

39.     Subsection (3) allows for products to be given away free to persons in the tobacco trade for the purposes of that trade.

40.     Subsection (4) provides a defence for someone who can prove that he did not know and had no reason to suspect that the purpose of the distribution was to promote a tobacco product, or that he could not reasonably have foreseen the effect of the distribution would be the promotion of a tobacco product. Once again this is a defence which could not be relied on once the effect of the distribution had been pointed out.

41.     Subsection (5) defines "coupon". It would include, for example, tear-off strips of a cigarette packet which allows the consumer money off their next purchase.

42.     Subsections (6) and (7) enable the Secretary of State to make regulations covering distributions at a nominal price or at a substantial discount. The intention is that this power would only be used if it emerged that products were being offered to consumers at nominal sums or at a substantial discount to promote tobacco products. For example, branded clothing might be sold for two thirds or more off the usual price. In the Government's view such a discount would amount to a substantial discount which went beyond normal marketing practice. Any such regulations would be preceded by a consultation process (and be subject to the affirmative resolution procedure).

Clause 10: Prohibition of Sponsorship

43.     Subsection (1) prohibits anything done pursuant to a sponsorship agreement if the purpose or effect of what is done is to promote a tobacco product. It applies to both the sponsor and the recipient. The contribution made by the sponsor must be made in the course of a business; there is no intention to catch the private individual who uses his own money to sponsor an event or activity so as to promote smoking. The Bill does not specify that the sponsorship agreements have to relate to any particular thing; typically sponsorship relates to an event or activity, such as a sporting competition or an artistic performance, but it could include sponsorship of a building or institution or service. These examples are not an exhaustive list.

44.     Subsection (2) defines a sponsorship agreement to include any form of promotion, whereby an event etc receives help in monetary or other form from an individual or organisation. An offence will be committed by both parties to the agreement when something is done as a result of the agreement to promote tobacco products in the UK. This clause does not prevent a tobacco company from giving money to support an event or activity, so long as the company's products are not given any promotion in return. For example, it is not intended to prevent a tobacco company supporting a theatrical production and being acknowledged for so doing, provided that the acknowledgement mentioned solely the name of the company and not any of its products, and did not involve any special treatment of the tobacco company over and above other sponsors, the purpose or effect of which was promotion of tobacco products.

45.     Subsection (3) sets out a defence, where the defendant did not know and had no reason to suspect that the purpose of what was done as a result of the agreement was to promote a tobacco product or if he could not reasonably foresee that that would be the effect.

46.     Subsection (4) provides a defence for the person sponsored where he did not know and had no reason to suspect that the contribution was made in the course of a business. This is to ensure that someone who could not have been expected to know that an apparently innocent contribution was in fact made in the course of a business would have an appropriate defence.

Clause 11: Brandsharing

47.     Brandsharing, or brandstretching as it is sometimes known, is a form of indirect advertising involving the use of tobacco branding on non-tobacco products or services, or vice versa, to promote the tobacco product. The rationale for taking action against this form of advertising is that it also increases consumption of tobacco.

48.     Subsection (1) enables the Secretary of State to make regulations concerning the use of such branding. It is intended that the regulations will set out limited circumstances in which brandsharing will be permissible. There will be full consultation on the scope of these regulations. Paragraphs (a) and (b) indicate that the regulations will apply to shared branding both in tobacco and non-tobacco products, goods and services.

49.     Subsection (2) provides that, consistently with the rest of the Bill's provisions, the regulations may be made only in relation to brandsharing where the purpose or effect is to promote a tobacco product.

50.     Subsection (3) provides that if regulations made under this section allow for an exception, then that exception may also apply to offences under other sections. This would mean that if the use of branding was allowed under the brandsharing regulations then other uses of that branding, including advertising, would not fall foul of other parts of the Act. This is to avoid the situation where, for example, a company could legally trade their product but might find themselves prosecuted under the advertising prohibition.

Clause 12: Broadcasting

51.     This clause excludes from the scope of this Bill the BBC and all broadcasting media covered by the Broadcasting Acts 1990 and 1996. Codes of Practice issued by the Independent Television Commission and the Radio Authority under the Broadcasting Acts regulate the advertising and promotion of tobacco products on these services. Other broadcasting media will be subject to the provisions of the Bill.

Clause 13: Enforcement

52.     This clause sets out the authorities who will be responsible for enforcing the ban on tobacco advertising. In practice, this means the local trading standards officers in England and Wales.

53.     Subsections (3) and (4) provide a power for Ministers in England and Wales and Scotland and the Department of Health, Social Services and Public Safety in Northern Ireland to direct that any of the enforcement functions be taken over by them in any particular case or class of cases.

54.     Subsections (5) and (6) provide a similar power for the Secretary of State in England and Wales or the Department of Health, Social Services and Public Safety in Northern Ireland to take over a prosecution. There is no need for this power to apply to Scotland as the Procurator Fiscal decides whether to prosecute (and then deals with any prosecution) once the authority considers that there should be a prosecution.

55.     These powers are intended to ensure that a particularly important or difficult prosecution need not be lost if the enforcement authority involved felt unable to take on or continue with the case, for whatever reason.

56     Subsection (7) allows any magistrates in England and Wales, and Northern Ireland, to hear a case brought under this legislation. In general alleged offences will be tried locally but there may be reasons that make it necessary to try an alleged offence elsewhere. Again, there is no equivalent provision for Scotland in the light of the separation of the enforcement and prosecution functions there. An equivalent provision is also not needed for Crown Courts as their jurisdiction is not territorially limited.

Clause 14: Powers of Entry etc.

57.     This clause sets out the powers of entry which enforcement officers may exercise. Such powers are standard powers for enforcement officers (see for example some similar provisions in the Consumer Protection Act 1987) tailored to fit the subject matter of this Bill.

Clause 15: Obstruction of Officers

58.     This clause makes obstructing an officer of an enforcement body, or making false statements to an officer, an offence. There is a defence to the latter charge if someone can prove he did know that the information was false and had reasonable grounds to believe it was true.

Clause 16: Penalties

59.     This clause sets out the penalties for offences under the Bill as being either a fine or imprisonment. "Summary conviction" means that prosecutions under the Bill will be dealt with by magistrates courts. "Conviction on indictment" refers to a conviction in a Crown Court. The penalty for obstructing an officer is a fine not exceeding level 3 on the standard scale; any other offences are punishable by, in magistrates courts, a fine not exceeding level 5 of the standard scale, up to six months imprisonment, or both; and in Crown Courts an unlimited fine, up to two year's imprisonment, or both. A fine at level 3 is currently £1000 and at Level 5, £5000.

60.     The Government would expect most offences to be dealt with in magistrates courts, as they would not be of the gravity or seriousness which would merit being tried in the Crown Court. However, the possibility of a longer term of imprisonment and unlimited fines are being made available to ensure that those who might be tempted to breach the legislation repeatedly would face appropriate penalties.

Clause 17: Offences by Bodies Corporate and Scottish Partnerships

61.     This clause provides that officers of companies as well as the companies themselves are liable to be prosecuted as appropriate. An officer will be liable if it is proved that an offence was committed by the company with his consent or connivance or because of his neglect. An officer is defined in subsection (2).

Clause 18: Regulations

62.     This clause sets out further details on regulation and order-making powers. These powers cover the following areas in this Bill:

    (i) advertising at point of sale (clause 4(2))

    (ii) advertising within a specialist tobacconist (clause 6(1)(c))

(iii) developments in technology (clause 7)

(iv) display at point of sale (clause 8(1))

(v) distributions at nominal amounts or at a substantial discount (clause 9(6))

(vi) brandsharing (clause 11)

(vii) sponsorship (clause 19).

Subsection (3) provides that the order concerning developments in technology (clause 7), and the regulations on brandsharing (clause 11), display (clause 8) and distributions at a nominal cost or substantial discount (clause 9) will be subject to the affirmative resolution procedure, which means that they will have to be debated and approved by both the House of Commons and the House of Lords. Other regulations are subject to the negative resolution procedure.

63.     The Scottish Parliament will make any regulations relating to Scotland covering advertising at point of sale, display, specialist tobacconists and sponsorship.

64.      Nothing in this clause permits the Scottish Parliament to exercise jurisdiction outside Scotland or for the Westminster Parliament to override the wishes of the Scottish Parliament where it has been agreed that the Scottish Parliament should pass delegated legislation.

 
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