Health and Care Bill

Baroness Stowell of Beeston Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

[Lord Lansley (Con)]

The noble Baroness is drawing me into what is a very important debate, but I do not think it is this one in this group. We will come on to it perhaps on Amendment 259 at a later stage. I do not disagree that we have not succeeded where alcohol consumption is concerned, but the nature of the problem has manifested itself more recently, especially in smaller numbers of people consuming alcohol, some not at all, but those who do very often doing so through binge drinking, which is exactly what is giving rise to what we are all most concerned about, which is the significant harm that is resulting for those people. We need to think behaviourally about the nature of the problem in order to find behaviourally what is the nature of the solution.

I need to stop, but I shall raise just one point with my noble friend on the Front Bench. I started with nutrient profiling. Nutrient profiling is terribly important. The noble Lord, Lord Clement-Jones, made the point that we do not get to look at that, but what it says is terribly important. As I understand it, we are due for a revision, but we have not yet seen it. There was a 2013 study that looked at our nutrient profiling and compared it to that of the WHO and five European countries. It concluded that, in relation to a large number of processed and packaged foods, under our system 47% would be able to be advertised to children, while under the WHO system it was 32%. There is a significant difference in what one puts into the nutrient profiling. It is not an objective truth, and putting alcohol in it completely misses the point, since it is not constructed around that proposition. I ask my noble friend to tell us a bit more about the nutrient profiling process, the timetable, the evidence and how we are going to put it together to meet the objectives under the Bill.

[Baroness Stowell of Beeston (Con)]

I will be very brief. I declare my chairmanship of the Communications and Digital Committee. A lot of powerful speeches have been made all around the House today and clearly, we are all united in our care and concern for the issue of child obesity. The complexity of what is proposed in this legislation has been illustrated to such an extent that there is a case for delaying implementing these measures so that it is got right.

But the main reason for my decision to speak in this debate is the issue of fairness, equal treatment and the difference in the way these regulations apply to broadcasters and to the online platforms. The noble Viscount, Lord Colville, and my noble friend Lord Black of Brentwood have already spoken in some detail about the inequality of treatment between broadcasters and news publishers, and the online platforms.

I spell out clearly that what we are talking about here is that responsibility for the control and compliance of advertising that appears on television or radio rests with broadcasters, which can be sanctioned severely with huge fines by regulators if they allow anything that is non-compliant to air. But responsibility does not rest with the online platforms, which take far more in profit from the advertising they publish on their sites than any broadcaster is able to. They are equally able to control what appears on their platforms, as the noble Viscount powerfully described. Could my noble friend the Minister therefore explain why the Government are not ensuring parity between broadcasters and the likes of Google and Facebook at the point of legislation, to ensure parity in the way this will be applied?

Also under the heading of fairness, I say that, in the case of the small manufacturers of the products affected by the advertising ban, I support the amendment tabled by the noble Lord, Lord Clement-Jones, which ensures that the definition of “SME” in the Bill does not provide a loophole exempting large international manufacturers from these advertising restrictions just because they have a small workforce in this country.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I feel the need to balance the sides of this debate. I attached my name to Amendment 244 in the name of the noble Baroness, Lady Finlay. I associate myself with everything said by her and the noble Baroness, Lady Boycott, in particular, as well as the noble Lord, Lord Krebs, who gave powerful and well-evidenced presentations of why we need to see action here. Given the time and the fact that I have a train to catch, I will be brief.

The noble Lords, Lord Black and Lord Moylan, talked about freedom of speech—the freedom of the advertisers to push on to children whatever they want to push. I put against that the freedom to flourish and live a healthy life with a decent lifespan. The figures quoted by the noble Lord, Lord Stevens, illustrated that that is not being achieved and there is a deep inequality in our society.

The noble Lord, Lord Lansley, talked about how difficult it would be to measure or separate out the impact of these measures. We are in a hugely obesogenic environment. We have this huge problem with obesity not because human nature has suddenly changed and people have lost self-control, but because they are bombarded and barraged from all sides with ultra-processed pap, which we should stop all advertising of. I do not think that “High in fat, sugar and salt” goes far enough. There is evidence that under-11s—primary school kids—cannot distinguish between adverts and editorial content, so we have to protect them.

Finally, the noble Lord, Lord Black, asked about the international comparisons. Perhaps one of the most obvious ones is Norway, which brought in a ban somewhat similar to this in 2012. It has struggled for the reasons outlined by many noble Lords. Indeed, a study was produced by Oslo Metropolitan University last year, using the categorisation of the WHO European Office for Prevention and Control of Noncommunicable Diseases. Eight out of 10 adverts that young people in Norway were seeing online were for unhealthy food. That is a problem, but it is an argument not for doing nothing but for tackling the whole obesogenic environment that our young people are growing up in, with demonstrable effects. Norway, which has taken similar action to that which we are talking about today, as have Spain, Portugal, Slovenia, Latvia and Lithuania—that is just a shortlist—has half the level of childhood obesity that we do, and it regards it as a serious problem.

--- Later in debate ---

[Baroness Penn (Con)]

My Lords, this has been an important and engaging debate. There has been consensus that childhood obesity is one of the biggest health problems this nation faces—and maybe not just a health problem. We have also talked about the impact of inequality and broader life chances. The latest national child measurement programme data, from 2020-21, showed that some 40% of children leaving primary schools in England were overweight or living with obesity.

That is why, as part of our ambition to halve childhood obesity by 2030, it is imperative that we reduce children’s exposure to less healthy food and drink product advertising on TV and online. To be clear, the Government know that this is not a silver bullet, and this action alone will not solve the problem; it is part of a multifaceted plan. I can reassure my noble friend Lord Grade and the noble Baroness, Lady Walmsley, that this includes working with manufacturers on reformulation and to produce healthier food. Indeed, we are clear that products that are reformulated to pass the MPM will be able to be advertised, and we hope this provides a motivation for brands to do so. Obesity is a complex problem that builds over time through frequent excessive calorie consumption. Through this one action, as part of a wider programme, we estimate that we can remove up to 7.2 billion calories from children’s diets per year in the UK.

Turning to specific amendments and looking first at what should be covered by these priorities, I will speak to Amendments 253B, 254A, 254B, 247A, 249ZA, 249ZB, 250B, 252ZA, 252ZB, 248, 248A, and 251. We believe that the current approach to defining food that is less healthy provides sufficient legal certainty and is consistent with other healthy weight restrictions and policies. For example, it is used in a similar way in the promotions and placement restrictions for less healthy food and drink, which were made law last December.

It is important to provide detail in the Bill on the two-step criteria to determine what is less healthy, in order to ensure that the primary legislation is sufficiently clear. The nutrient profiling model has been used by Ofcom since 2007 to determine what can be advertised around child-specific programming on TV, although outside the statutory framework. The technical guidance of January 2011, which provides the steps to calculate the nutrient profiling model score, is an existing document that has been specifically developed and used to support industry since it was published. Its substance is not changeable at the discretion of the Secretary of State and, as an additional safeguard, the Government have already amended Schedule 17 to include a statutory duty to consult in the event that a change is proposed to the meaning of “the relevant guidance”.

I can assure noble Lords that the current approach would allow healthier products, which may contain fruit, nuts and seeds or be a source of protein, to not be caught by restrictions, while still restricting those which are less healthy overall. However, that will also need to be underpinned by secondary legislation, which the Government will be consulting on shortly, and the points your Lordships have raised will be considered as part of this.

The proposed amendment to permit the advertising of confectionery of less than 200 calories could mean that adverts for chocolate confectionery products could still be permitted on TV before the watershed and online, given the likely difficulty in determining portion sizes in such adverts. This would undermine the policy and send out the wrong message to consumers and producers.

In response to Amendment 244, we do not believe it is necessary to consult on whether alcohol should be included as a “less healthy” product, as these provisions are aimed at reducing the exposure of children to less healthy food and drink advertising. Unlike alcohol, less healthy food and drink products are not age-restricted at the point of purchase. In addition, as noble Lords have noted, there are other measures in place that address the advertising of alcohol.

Turning to Amendments 247, 250A and 253A, I assure noble Lords that brand advertising is out of scope of the restrictions, as these clauses focus on identifiable products. Including an exemption in the Bill for something that is already out of scope would have no legal effect and therefore may cause undue confusion.

I turn to Amendments 248B, 251A and 253C on who will be covered by these proposals. We intend to define food and drink SMEs as businesses with 249 employees or fewer, as outlined in our consultation response. By doing this, the Government want to ensure consistency with other similar definitions, such as for out-of-home calorie labelling. We will consult on the secondary legislation defining food and drink SMEs shortly, but this approach will allow Ministers to act promptly to change the definition of food or drink SMEs in future, should it be necessary.

I turn to platform liability and other questions regarding the watershed hours in Amendments 250ZA, 253ZA, 254A, 255A, 255B, 257B and 253AA. Platform liability is incredibly important. During the 2020 consultation, we considered whether other actors in the online advertising supply chain should have responsibility for breaches alongside advertisers, but concluded that this was not the right place for this broader issue, given the far-reaching impacts for the industry. However, I reassure my noble friend Lady Stowell, the noble Lord, Lord Clement-Jones, and many others that the Government intend to consider platform liability as part of the wider online advertising programme.

On the question of when these restrictions should apply, Ofcom’s research—

[Baroness Stowell of Beeston (Con)]

I am so sorry to interrupt my noble friend, but can she please give us a timescale for that?

[Baroness Penn (Con)]

I believe it is being conducted this year, but I will check that and come back to my noble friend and all other Members of the Committee, because I know there is significant concern on that point.

On the timing of the restrictions on television, Ofcom research suggests that children’s viewing peaks in the hours after school, with the largest number of child viewers concentrated between 6 pm and 9 pm. In this period, half of children’s viewing takes place during adult commercial programming. We do not therefore believe that introducing advertising restrictions only on the weekend is sufficient to meet our policy objectives.

We are committed to ensuring that businesses are supported now and when the regime comes into force. We will, of course, consult on the secondary legislation and guidance, which should give stakeholders more clarity. However, in response to Amendments 245, 255, 256, 257 and 317, we believe that the overall policy direction has been set out effectively and we do not think that there is a need to add the kind of gap between publication of final guidance and implementation, as proposed by my noble friend’s amendment.

In response to Amendments 249A, 252A and 257A, I can assure your Lordships that we will conduct a post-implementation review five years after implementation. This is intended to be based on the variables set out in the impact assessment, published in June 2021. However, the Government believe that further tying down of the criteria at this stage would be counterproductive. We will also use this opportunity to look at any displacement of advertising to other media not covered by the restrictions, such as outdoor advertising.

However, in response to Amendment 244A, there is insufficient evidence at this stage of the influence of further national advertising restrictions in other media on calorie consumption in children, which is why these restrictions focus on TV and online only. We would also advise against adding a sunset clause, as it would pre-empt this evaluative work and could undermine compliance. We have heard quite a bit from noble Lords about the need for certainty on the Government’s approach in this area. I say to my noble friend that a sunset clause on these regulations would undermine that case.