Mr. David Ruffley (Bury St. Edmunds): I seek clarification of the Government's thinking with regard to the use of the phrase,
''in the course of a business''.
I can think of at least two examples where the evil—if it can be called that—that the Bill seeks to outlaw might be perpetrated. Imagine if a tobacco factory in Nottingham—I know that there are tobacco factories there—were to experience a fall-off in sales of its product as a result of the Bill and had to shed jobs. As a result of that threat, the work-force convenor might say, ''I am going to put out a newsletter and advertise the wonderful brand of cigarettes that my work force produce. We are going to say 'buy these cigarettes and save jobs in your local factory.'''
Given that the thrust of the Bill is to stop the advertising of tobacco products, would it be lawful if a member of the work force were, in his or her private capacity, to put that message not on a company letterhead but in a local residents' newsletter sent to the streets around the tobacco factory? On the face of it, it appears that it would be lawful. I do not think that such freelance activity would be determined as falling
''in the course of a business'',
as it says in the clause. Does not the Minister think that that is a quite extraordinary loophole?
My second example, which is less powerful, but I shall rehearse it none the less—[Interruption.] If muttering Labour Members do not think that my first example was a possibility, perhaps they could adduce evidence as to why not. It was a perfectly feasible scenario to outline. I am just seeking enlightenment from the Minister—who has been very
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helpful thus far, on which I congratulate her—as to why the Bill does not outlaw such activity. That seems a perfectly fair question.
Suppose that some university students, who produce a non-profit-making newsletter and are ideologically minded and of a libertarian cast of mind, see the Bill and find it offensive for ideological reasons, and want to strike a blow for the freedom of manufacturers to advertise a product that is not illegal; it is not unlawful to smoke cigarettes. Such a newsletter might then be disseminated across the city of Birmingham or, more likely, somewhere like St. Andrews. Is the Minister comfortable allowing something like that to slip through the net that the Bill attempts to cast over advertising?
Those are two clear loopholes that the words
''in the course of a business''
allow to come into being. I wonder whether the Minister would put my mind at rest by briefly rehearsing why that phrase was drafted. Why are there not more prohibitions in order effectively to deny opportunities for the creation of loopholes? I must say that my first example is better than my second.
Yvette Cooper: The hon. Gentleman is obviously desperate to find loopholes for us to close, and I appreciate his concern. Ultimately, such issues will be matters of fact for the courts to decide on, but the key test is whether people produce such newsletters
''in the course of a business''.
If they produce them in an organised way, the courts may well decide to interpret that as being in the course of a business. However, purely day-to-day conversation might not be in the course of a business, and might not be an advertisement, either.
Those will be the tests: whether it is an advertisement, in the normal understanding of that word, and whether it is produced in the course of a business. The other issue will be whether the producers are effectively sponsored to do so—that is, even if they are not doing it themselves in the course of their own business, whether they are effectively being sponsored by the tobacco industry for which they work, for example, and have a sponsorship agreement.
The second issue relating to not-for-profit student publications involves issues surrounding journalism. An advertisement is one thing. A piece of journalism, whether written by a student or someone else, would not be covered in the same way—unless the person involved were paid or received free distribution or sponsorship to write the article.
Ultimately, a judgment will be made. Some people would like anything that promotes tobacco products to be banned. We have made a decision to ban advertising in the course of a business and to allow free speech and discussion about the merits and health risks of smoking and of different tobacco products—when that is not done in the course of a business and when it does not constitute an advertisement.
That is right, because ultimately the purpose of a tobacco advertising ban is to protect people who want to give up smoking and children, who should not be bombarded by tobacco advertising. That is the
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fundamental principle behind the Bill, and it is consistent.
Question put and agreed to.
Clause 3 ordered to stand part of the Bill.
Mr. Adrian Flook (Taunton): I beg to move amendment No. 8, in page 2, line 13, leave out
', or is contained in, a communication'.
I regard this as an exceptional Bill of unprecedented character, because it seeks to ban virtually every possible means of bringing a particular product to the notice of the public. Yet we must not forget that it is perfectly legal to manufacture, sell, buy, use and, more importantly from the Government's point of view, tax that product.
Elements of the Bill impose prohibitions that are wholly disproportionate to the assumed and unsubstantiated claimed benefits. It is anticompetitive and restrictive of trade, it infringes important fundamental freedoms and rights and it bears all the hallmarks of legislation that will give rise to serious challenge in the courts.
The ban on advertising that the Bill imposes is obviously supposed to be total, save the exclusions in the clause, which are minor and poorly and inadequately drafted. That is why we tabled the amendment.
The amendment would amend subsection (1)(a), which states that an advertisement is not an offence if it is a communication or is contained in a communication made in the course of a business that is part of the tobacco trade, and is for the purposes of that trade and directed solely at persons in that trade, who are subsequently defined. The supplementary provisions of subsection (2) apply.
The Government tell us that they have no intention of prohibiting advertising or promotion in the tobacco trade. After all, as I said, manufacturing and selling tobacco are perfectly legal activities. However, my contention is that the subsection does inhibit such advertising.
The subsection refers to advertisements that are communications or contained in communications. The word ''communication'' can be interpreted in two senses. In the Bill, we should consider terms as having their natural meaning, as I said in our previous sitting in relation to the natural meaning of the word ''promotion''. According to the ''Oxford English Dictionary'',
''a communication may be a letter or message containing information or news, or, the imparting or exchanging of information by speaking, writing, or by using some other medium.''
In paragraph (b), the word ''communication'' and the same phraseology are used a second time, but by inference of what follows, a communication is something sent to a person who requests information. In that context, I would welcome guidance from the Minister as to whether communication is used in the same sense as in
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paragraph (a). That would not seem to be the case, given the Government's remarks in the other place in November. Lord Filkin stated that the exclusion would apply
''to trade journals and magazines, mail shots for tobacco companies to retailers and handouts at trade exhibitions.''
However, Lord Filkin went on to say—and this is the worrying point—that that was not an ''exclusive'' list
''and there may be other forms as well.''—[Official Report, House of Lords, 16 November 2001; Vol. 628, c. 853.]
The amendment seeks to discover what those other forms are. Apart from things that may be sent or handed to persons within the trade, which may comprise advertisements, there are display advertisements at trade shows, and advertising at other trade events and within wholesalers' premises such as cash and carrys. All constitute communications, but are different from communications that may be handed or sent to a person. The amendment seeks to ensure that advertising and the promotion of tobacco products is permitted, provided that it is conducted within and solely for the purposes of the tobacco trade.
Yvette Cooper: Even after listening to the hon. Gentleman's argument, I still cannot see why his amendment is necessary. To be honest, I do not see how it would change the Bill in any way. He seemed to be saying that advertisements in wholesalers are not communications, but they are. They would be permitted as exclusions in the Bill subject to the conditions in clause 4 (2) only if they were directed solely at people engaged in the trade with particular ''responsibility for making decisions''. Otherwise, communications would also include such advertisements. It is not clear how removing ''communication'' would add to the Bill. It is hard to see how one could advertise without communicating. How could one have a tobacco advertisement that was not a communication of some sort? The amendment does not add to or detract from the Bill, so it is unnecessary.
Mr. Flook: The intention of the amendment is that removing the words
''or is contained in, a communication''
clarifies and simplifies the rest of the paragraph. It is a probing amendment, and because the Minister showed great interest in not answering it, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Andrew Hunter (Basingstoke): I beg to move amendment No. 9, in page 2, line 15, leave out from 'persons' to end of line 19 and insert
'engaged in any capacity in that trade (even if they are also engaged in another trade),'.