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I am a little disappointed by the Government’s timidity on this issue. The Bill gives us an opportunity finally to remove vending machines from Britain. If we did so, we would be complying with the WHO Framework Convention on Tobacco Control and following the example of 22 other countries in Europe. It is a great pity that this opportunity has not been taken, and I am afraid that I must tell my noble friend the Minister that, if the noble Baroness pushes this to a vote, I shall be voting with her.

Baroness Barker: My Lords, I do not wish to detain the House for long, not least because there is yet one more important item on the agenda which I sincerely hope that we can get to.

Unlike the previous debate, the evidence base here is quite clear; in fact, I will add to it. A wholly unscientific poll of every adult smoker I have spoken to in the past month has come up with a 100 per cent result: they all think that vending machines are a complete anachronism. They belong to the time when the whole of Wales shut on a Sunday. Well, it no longer does, and all they therefore are is, as other noble Lords have said, a way for young people to get around that scrutiny and supervision which some of us believe is important in cigarette transactions. I hope that the Minister will accept the amendment; if she does not, I assure the noble Baroness, Lady Finlay, that I and all my colleagues will be with her in the Lobbies.

Lord Patel: My Lords, my name is on the amendment, which I strongly support. I see no reason why we carry on with vending machines that dispense cigarettes to children. The film that the noble Lord, Lord Faulkner, mentioned is compulsive viewing, showing two children so easily obtaining cigarettes from vending machines near the Houses of Parliament.

Lord Turnberg: My Lords, I have a simple view of this. If one starts from the position of wanting to protect children from the effects of smoking, we should make it more difficult for them to obtain cigarettes. Vending machines are an easy way in, as we have heard. I cannot think of any rational reason why we should not get rid of them.

Baroness Thornton: My Lords, this group of amendments would compel the national authorities in England, Wales and Northern Ireland to ban tobacco vending machines. The amendments would also require the Government to consult those people affected by such a ban. As I stated in Grand Committee, the

6 May 2009 : Column 600

Government recognise that there is a serious problem with young people accessing tobacco. Noble Lords will know how sympathetic I am to the amendment.

Noble Lords will also know that we raised the age of sale for tobacco to 18 in 2007, and may be aware that, from 1 April this year, trading standards authorities have new powers to tackle underage sales. From now on, those caught persistently selling tobacco to children could be prevented from selling tobacco to anyone for up to a year. We continue to work closely with trading standards officers and the business community to raise the profile of this issue and to ensure that retailers and vending machine operators are fully informed about their duties under the law.

We know that most vending machines do not have age check mechanisms in place and often they are sited away from the bar or where staff cannot see them, meaning that no one is supervising their use. Although we know that vending machines are easily accessible to young people, the Government believe that we should take a staged response to the problem. Age-restriction mechanisms applied to vending machines could prevent underage access to cigarettes, while maintaining the source of cigarettes for adults.

We are committed, as we have just illustrated, to protecting children from the harms of tobacco. We are already working with key stakeholders such as the National Association of Cigarette Machine Operators and trading standards to develop regulations. We would specify how vending machines need to be operated and managed to prevent underage sales and we are committed to consulting on draft regulations as soon as possible after Royal Assent.

We understand the concerns of those who are unconvinced by age-restriction mechanisms. We are already looking to the experience abroad and to new mechanisms being trialled here in the UK to ensure that the most effective approach is taken to tackle this problem. Should it become necessary, we are committed to using the power in this Bill to prohibit cigarette vending machines altogether. We intend to introduce requirements on vending machines from October 2011 and to measure their efficacy over a period of two years. Should underage sales from vending machines remain a problem after that period we will move to ban them.

The Government are committed to protecting our children. I welcome the support we have received in this House and I hope that, in the light of our commitments, the noble Baroness will feel able to withdraw the amendment.

Baroness Finlay of Llandaff: My Lords, I would like to have been able to thank the Minister for her reply, but I cannot. I am not at all convinced. What she has outlined is lamentably weak, particularly in the light of the recent victory. Therefore, I feel I must test the opinion of the House. I cannot see an argument put forward here to maintain these anachronistic vending machines.

7 pm

Division on Amendment 47

Contents 86; Not-Contents 134.

6 May 2009 : Column 601

Amendment 47 disagreed.

Division No. 2


Addington, L.
Afshar, B.
Barker, B.
Bew, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Brooke of Sutton Mandeville, L.
Burnett, L.
Clinton-Davis, L.
Cobbold, L.
Colwyn, L.
Coussins, B.
Cox, B.
Craig of Radley, L.
Craigavon, V.
Cumberlege, B.
Dear, L.
Dholakia, L.
D'Souza, B.
Dundee, E.
Emerton, B.
Falkland, V.
Falkner of Margravine, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B. [Teller]
Gardner of Parkes, B.
Gibson of Market Rasen, B.
Goodhart, L.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Haworth, L.
Howarth of Breckland, B.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hylton, L.
Jones of Cheltenham, L.
Krebs, L.
Laird, L.
Lee of Trafford, L.
Linklater of Butterstone, B.
Listowel, E.
Livsey of Talgarth, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mawson, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Murphy, B.
Neuberger, B.
Newby, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Neill of Clackmannan, L.
Patel, L. [Teller]
Pearson of Rannoch, L.
Razzall, L.
Rea, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Sandwich, E.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Thomas of Winchester, B.
Tonge, B.
Turnberg, L.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Williams of Crosby, B.
Williamson of Horton, L.


Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Andrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Ashcroft, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bates, L.
Bernstein of Craigweil, L.
Bilston, L.
Blackstone, B.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brougham and Vaux, L.
Buscombe, B.
Campbell-Savours, L.
Cathcart, E.
Clarke of Hampstead, L.
Crawley, B.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Forsyth of Drumlean, L.
Foster of Bishop Auckland, L.
Gale, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.

6 May 2009 : Column 602

Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Henig, B.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe, E.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Janner of Braunstone, L.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kingsland, L.
Kirkhill, L.
Lea of Crondall, L.
Levy, L.
Liverpool, E.
Lofthouse of Pontefract, L.
Lyell, L.
McDonagh, B.
McIntosh of Haringey, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Mandelson, L.
Maxton, L.
Monson, L.
Morgan of Drefelin, B.
Morris of Bolton, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Naseby, L.
Neville-Jones, B.
Noakes, B.
Palmer, L.
Parekh, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Reay, L.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Selsdon, L.
Smith of Leigh, L.
Soley, L.
Stevens of Kirkwhelpington, L.
Stewartby, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Uddin, B.
Ullswater, V.
Wakeham, L.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Wilcox, B.
Wilkins, B.
Winston, L.
Young of Norwood Green, L.
7.11 pm

Amendments 48 to 53 not moved.

Clause 21 : Power to prohibit or restrict sales from vending machines: Northern Ireland.

Amendments 54 to 59 not moved.

Amendment 60

Moved by Lord Patel

60: After Clause 22, insert the following new Clause—

“Plain packaging of tobacco products etc.

(1) The Secretary of State may make regulations imposing such requirements as he considers necessary prohibiting or restricting the sale or supply of tobacco products otherwise than in packages or packaging which comply with the regulations.

(2) The regulations made by the Secretary of State in subsection (1) may impose such requirements the Secretary of State considers necessary or expedient with respect to any one or more of the following particulars—

(a) the colour of the packages or packaging;

(b) the shape and material of the packages or packaging;

(c) distinctive marks displayed on the packages or packaging;

(d) trade marks or registered trade marks displayed on the packages or packaging;

6 May 2009 : Column 603

(e) the labelling in any respect of packages, packaging or tobacco products, or associated with packages, packaging or tobacco products;

(f) the contents inside the packages or packaging, in addition to tobacco products; and

(g) any other particulars as may be prescribed by the Secretary of State.

(3) Regulations made under this section may provide that packages or packaging of any such description, or falling within any such class, as may be specified in the regulations shall not, except in such circumstances (if any) as may be so specified, be of any such colour or shape, or display any such mark or trade mark, or any other particulars as may be so specified.

(4) No person shall, in the course of a business carried on by him, sell or supply, or have in his possession for the sale or supply, any tobacco product, package, or packaging in such circumstances as to contravene any requirements imposed by regulations under this section which are applicable to that tobacco product, package, or packaging.

(5) Any regulations made under this section may provide that any person who contravenes the regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding a level on the standard scale specified in regulations made by the Secretary of State.

(6) Before making any regulations under this section, the Secretary of State shall consult such persons as are likely to him to be substantially affected by those regulations.

(7) For the purposes of this Act—

“package” shall mean the packet, container, wrapping or other receptacle which contains or is to contain the tobacco products;

“packaging” shall mean all products made of any material to be used for the containment, protection, handling, transporting, delivery, sale and presentation of the packages;

“tobacco product” shall include cigarettes, cigars and any other product containing tobacco and intended for oral or nasal use and smoking mixtures intended as a substitute for tobacco, and the expression “cigarettes” includes cut tobacco rolled up in paper, tobacco leaf, or other material in such form as to be capable of immediate use for smoking, and cigarette papers, tubes and filters;

“trade mark” and “registered trade mark” shall have the same meaning as in section 1 of the Trade Marks Act 1994 (c. 26).

(8) Regulations made by the Secretary of State under this section—

(a) may make different provision for different cases; and

(b) may contain such incidental supplemental, consequential and transitional provision as the Secretary of State thinks fit.

(9) The powers of the Secretary of State under this subsection shall be exercisable by statutory instrument which shall be subject to the affirmative resolution procedure.”

Lord Patel: My Lords, my apologies, but it appears that someone has inadvertently removed my papers. My amendment relates to plain packaging. In summary, the amendment is about providing the Secretary of State with powers to make regulations which will restrict the use of branding, including the shape and colour of tobacco products and their packaging. The pack will retain the brand name of the product displayed in a standard font and the volume of the product; for example, “20 cigarettes”. The pack will retain features required by statute, including health warnings, tar and nicotine yields and a duty stamp.

Before making these regulations, the Secretary of State shall consult with affected parties. The regulations will be subject to affirmative resolution. The measures are necessary because the current branded packaging constitutes a highly effective form of tobacco advertising.

6 May 2009 : Column 604

Tobacco branding is particularly potent in the recruitment of young people into a lifelong and lethal addiction. Design features including colour-coding give the misleading and illegal impression that one type of cigarette is less harmful than another.

I reintroduced the amendment because since Committee plenty of new evidence has emerged from a variety of sources. I have also amended it in response to the objection of the noble Lord, Lord Stoddart, that it should provide for an affirmative instrument. Greater clarity has been provided by the Minister on the forthcoming tobacco control strategy which could include a planned review of the evidence. The Committee stage of the debate coincided with the World Conference of Tobacco or Health on the very day Members debated plain packs, and new research was presented that showed that plain packs are an effective means of controlling sales to children.

There are other issues relating to plain packs, which I believe the new amendment addresses. I hope that the Minister agrees to include it in the tobacco control strategy. If young people and smokers are to be given a real, free and informed choice about whether they should smoke or not, we should prohibit the branding which misinforms and inhibits choice. I beg to move.

Lord Borrie: My Lords, I express opposition to this amendment from the noble Lord, Lord Patel. In Grand Committee, when the noble Lord, Lord Patel, introduced a plain packaging proposal, which was similar to, but not exactly the same, as this Amendment 60, he admitted that:

“Large, bold, written health warnings are effective in motivating smokers to quit, and new picture warnings may be even more effective”.

He went on to say:

“However, tobacco branding lessens the impact of the warning message, as colourful branding detracts attention from health warnings”.—[Official Report, 11/3/09; col. GC442.]

I find that last sentence very difficult to accept. It seems to me a major assumption that the brand detracts seriously from the health warnings. The phrase, for example, “Smoking kills”, which when looking at the gantry one sees again and again because it is on each packet, and the visually unpleasant pictorial warnings are far more vivid than any logo or brand, whether coloured or not. Even the Government—at least when last in Grand Committee—who seemed only too willing to impose further restrictions on the promotions of tobacco products, have not been impressed by evidence that the introduction of plain packaging would reduce the number of young people taking up smoking.

Since the Tobacco Advertising and Promotion Act 2002 banned most methods of promoting and advertising tobacco, brand differentiation is one of the few methods left to compete in the market place—apart from reductions in price. Presumably, neither the noble Lord, Lord Patel, nor his colleagues who favour this amendment, would want competition to consist entirely in lowering prices. That, of course, would encourage young people to buy. In Grand Committee, the noble Lord, Lord Naseby, and I expressed concern that Amendment 60, or something like it, expressly opened up the possibility of prohibiting by regulation the use of trademarks on cigarette packets—and trademarks are specifically mentioned in subsection (2) of Amendment 60.

6 May 2009 : Column 605

To obtain a trademark on any product you have to pay application fees, you have to pay registration fees, you have to pay renewal fees; all paid to the state. In return, you get a property right, which of course is absolutely useless unless you can affix the trademark to the relevant product. In Grand Committee, I quoted an expert on intellectual property law, Mr Christopher Morcom QC, who expressed concern that such a proposal would contravene international law, European law, and British national law. Since our debates in Grand Committee, he wrote a letter to the Times, 24 April 2009. The last sentence in his letter reads:

“The House of Lords should have none of it”.

Lord Naseby: My Lords, I very much support the noble Lord, Lord Borrie. Although I shall not repeat what he has said, I totally concur because the legal dimensions of this are, frankly, awe-inspiring or frightening, whatever the right phrase is. We do not need to cover them again; they were clearly placed on the record in Grand Committee.

I will mention a couple of other new dimensions. First, the very existence of a brand, whether it be a cigarette or anything else, gives the customer a reassurance of quality. We know already that, roughly speaking, a third of our tobacco products are imported from somewhere or other and, without a brand, my friends, you will find that the importation of other products in plain packaging will dramatically increase. Canada has already seen that since the display ban the importation of products to Canada has risen to 50 per cent of the market. From a health point of view, relating just to tobacco, it is important that those who decide to purchase know that they are getting a product of guaranteed quality and not a bit of grass that has been put together somewhere in the world.

The other dimension that I want to mention concerns looking at what other countries have done. Occasionally in this country, we need to look at what others do. Both the Canadian and Australian Governments, having weighed up the legal advice, have decided that they are not going down this route. The reasons for that are partially because of the points that the noble Lord, Lord Borrie, raised; partially for the reasons that I have just given; and not least that because companies right across the consumer goods market value their brands—and they have a tremendous value—any Government tempted down this route will find themselves having to pay enormous compensation for the loss of a brand.

Baroness Golding: My Lords, I will speak briefly to oppose the amendment. I do not know what is worrying the noble Lord, Lord Patel, about what is already on the packages. Is it the phrase:

“Smoking seriously harms you and others around you”?

Is it, “Smoking kills”? Is it, “UK duty paid”, which is in large letters, to prevent smuggling? Is it:

“Smoking causes ageing of the skin”,

with a lurid picture provided by the Government? Is it:

“Smoking can cause a slow and painful death”,

with a lurid picture of someone’s neck falling out, which is also provided by the Government? Is it:

“Protect children—don’t make them breathe your smoke”,

with another lurid picture?

6 May 2009 : Column 606

What is the noble Lord objecting to? Is it the tar content, which is on the packet? Is it the nicotine content, which is on the packet? Is it the carbon monoxide content, which is on the packet? Is it just that the brands display their brand name, and do so, as they are entitled to do? What is bothering the noble Lord?

Baroness Barker: My Lords, since the amendment stands also in my name, perhaps I might, with the leave of the noble Lord, Lord Patel, answer that question on his behalf. It is none of those things, which would remain on a plain package—the health warnings and all of that. It is the use of colours and effects on packets to make them attractive to young people and to imply some kind of value and quality. That is what packets do. That is the distinction. I happen to have lost my point earlier. I think that those signs that were put on to tobacco packets as a result of the Bill introduced by my noble friend Lord Clement-Jones should remain. I happen to think that having them on display is far more effective than what the Government have provided.

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