Health and Care Bill

Lord Black of Brentwood Excerpts

Lords Hansard - Part 2 & Report stage
Monday 7th March 2022 Lords Chamber

[Lord Naseby (Con)]

My Lords, I support my noble friend on these amendments. Of course, this is an extension of the debate that we had on the eighth day in Committee on the Bill. I want to look at the central problem behind the case history that my noble friend has outlined so clearly this evening. We need to remind ourselves that we are dealing with the food industry, one of the largest industries in the United Kingdom.

To the best of my knowledge having contacted all the trade associations, all parties want to reduce childhood obesity. There is no argument about that anywhere and, in the case of this industry, there are several areas of trade association activity, through ISBA, the IPA, the Food and Drink Federation and—of particular relevance to digital advertising—the IAB, which has worked very closely with DCMS. In a sense, that is part of the problem, because my noble friend on the Front Bench is not speaking on behalf of DCMS but about the Health and Care Bill on behalf of the DHSC.

The IAB, representing all food manufacturers dealing with digital advertising, has worked very closely with DCMS. It has kept it up to date on the latest developments, but DCMS has not engaged or worked with the industry in finding a solution. The industry has worked constructively for a long time to propose a tech-based solution that would achieve the Government’s objective of a further reduction in the number of HFSS advertisements that are viewed by children. This proposed solution would use proven, targeted technology and includes an element of advertising campaign evaluation which would be future-proof—this is important—and ensure that it continues to improve. The irony is that the industry wants to work with the Government on this matter, but so far the Government are sadly ignoring this industry’s expertise and dismissing its proposals.

I had the privilege of working in the advertising industry for 25 years, and I have seen these sorts of developments in other fields. When you have an industry working with government on an area that is important to both parties, it is a tragedy that Her Majesty’s Government, through DCMS, are not working. Yes, it is new technology, and the Government might feel happier if there was some experimental work in special test markets or whatever, but the sad thing is that this technology is there, and is proven, but still Her Majesty’s Government are refusing to use it and are seemingly—perhaps I am being too critical from the outside—unable to understand whether it will work. This is hugely frustrating for any company in this market.

I am sure my noble friend on the Front Bench is aware that the Prime Minister wants this country to lead digitally, and here we are on the frontiers of this area where we are leading, yet we cannot move forward. If the Government have reservations—and it is difficult for someone from another department, in this case the Department of Health and Social Care, who has therefore not been party to what has been going on—would it not be more sensible to have another look and evaluate it properly with those who really understand how it works and how it is developing? If the Government are still not convinced, I suppose we will have to try again later. As someone who comes from that industry—I have no involvement now and am not speaking for any particular party—I want to see companies in this area, like the one my noble friend described this evening, to be able to succeed in future.

Finally and frankly, the Government’s blunt and disproportionate advertising ban will not be effective. When there is another system on the table, my noble friend ought to take it back, have another look at it and see whether it will help everybody.

[Lord Black of Brentwood (Con)]

My Lords, I am speaking to Amendment 151A in my name and to four other consequential amendments which relate to the responsibility of online platforms for enforcing the ban on HFSS advertising. The amendments have been signed by the noble Baroness, Lady Merron, the noble Lord, Lord Clement-Jones and the noble Viscount, Lord Colville of Culross, a cross-party group which underlines how important the issue is, and I am grateful to them.

I declare an interest as a director of the Advertising Standards Board of Finance and deputy chairman of the Telegraph Media Group, and note my other media interests as set out in the register. I am also a vice-chairman of the APPG on ITV.

I intend to be very brief as these issues were discussed at great length in Committee. Indeed, over a marathon three-hour session, when many noble Lords raised concerns about the implementation of the proposed ban, they noted that it would not be effective as structured: it was not proportionate, it was an infringement on freedom of expression, and it was unfair and unbalanced because it penalised broadcasters and publishers and did not provide for any enforcement by the platforms—Google, Facebook, and others—where the vast majority of HFSS advertising sits.

--- Later in debate ---

Moved by

[Lord Black of Brentwood]

151A: Schedule 18, page 256, line 23, after “for” insert “, market, sell or arrange for”
Member’s explanatory statement
This amendment and other amendments to Schedule 18 hold both advertisers and online platforms responsible under statute for compliance with the online HFSS advertising restrictions in the Bill, enforced by a statutory regulator with meaningful sanctions for non-compliance. The concept of “market, sell or arrange” is one already adopted by Ofcom for its statutory regulation of online advertising on some Video Sharing Platforms (VSPs), so it is already well established.

[Lord Black of Brentwood (Con)]

My Lords, I am very grateful to my noble friend the Minister for the comments she made, but I am afraid I am wholly unconvinced by them. I do not think she has understood the point made by so many in passionate speeches that action is needed this day, not at some future point. The regulation of the platforms is an issue of principle on which this House should be proud to take a decisive stand. I would therefore like to move the amendment and test the opinion of the House.

Health and Care Bill

Lord Black of Brentwood Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

[Lord Stevens of Birmingham (CB)]

As the noble Lord will know, the genuine problem that we have in this country is that unfortunately we are a world leader in childhood obesity. It therefore falls to us to take world-leading action to respond to that.

Even classical economic liberals will accept that children are not sovereign consumers. The noble Lord, Lord Vaizey, in his earlier remarks, said that there was no evidence that advertising leads to increased consumption. My noble friend Lord Krebs has comprehensively rebutted that point but, to underline the matter, I say that studies of children’s ventromedial prefrontal cortices—the areas of their brains associated with reward valuation—suggest that watching food commercials systematically alters the psychological and neurobiological mechanisms of children’s food decisions. Even small but sustained reductions in at-risk children’s calorific content provide demonstrable physiological benefit.

By the way, this figure of 1.7 grams or 3 grams, as my noble friend Lord Krebs pointed out, is a mistaken application of epidemiological maths—that is, dividing the assumed totality of calorific reduction against the totality of children on an even basis, when in fact the children who will disproportionately benefit are those who are disproportionately exposed and disproportionately obese.

Systematic evidence reviews conclude that

“screen advertising for unhealthy food results in significant increases in dietary intake among children.”

Therefore, once we have had the denial, the second tactic is to dilute the regulatory effort—to insert loopholes, to neuter regulators, to drive a coach and horses through what is proposed. We have a number of amendments which seek to do that. They pretend, as the noble Baroness, Lady Boycott, pointed out, that advertising to children of a smaller item is not in practice also advertising the identically packaged larger item. They exempt ads for certain bars which by themselves may contain half of a child’s maximum daily recommended sugar intake. They give a green light to brand advertising, even where children perceive the fast food or confectionary brand and its associated unhealthy products as essentially the same. Widespread evidence shows that current narrow restrictions on children’s exposure to harmful junk food ads are routinely breached, and frankly these amendments seek to repeat the trick.

Even more absurdly, Amendments 245A and 250ZA would restrict harmful advertising only on a Saturday and Sunday. The noble Baroness, Lady Boycott, pointed out that those of us who are parents know that our kids are not exposed to screens only on a Saturday or Sunday; it turns out that Monday, Tuesday, Wednesday, Thursday and Friday are also days of pressure for those of us trying to be responsible parents. Or are we asked to believe that rising obesity in pre-school and school-age children does not happen on school days? If so, these amendments imply the discovery of a phenomenon unknown to medical science: weekend-only obesity.

Finally, when denial has been disproved and the dilution tactic has been debunked, the amendments try for delay—for more time to lobby for a weakening of the political will, to live to fight another day. “Lord make us pure, but not yet”; even St Augustine would blush at these amendments. Nor for that matter do government Amendments 249, 252 and 254 have anything to commend them. We have heard this morning a strange contradiction between the acknowledged urgency of the spiralling health crisis affecting our children versus the long and leisurely gap that some still want before further action is taken. These preventive measures were first announced by the Government in 2018. Three years is more than long enough to prepare and adapt. The Government’s goal is to halve childhood obesity by the end of the decade, but we are nowhere near being on track. We had better get on with it because, as the saying goes, children may be only a fifth of our population but they are 100% of our future. In the past, the blocking tactics of deny, dilute and delay have often succeeded—but today, perhaps not, because young people and parents want change, and because today, in this Bill, the Government are showing resolve; so too should we, my Lords.

[Lord Black of Brentwood (Con)]

My Lords, I will speak to Amendment 245, tabled by my noble friend Lord Vaizey, and to others in this group to which I have added my name. I declare my interests as a director of the Advertising Standards Board of Finance and deputy chairman of the Telegraph Media Group, and note my other interests in the register. I am also a vice-chairman of the ITV APPG.

This does not need repeating: I support the Government’s aim to tackle childhood obesity, but I am wholly opposed to their proposals to tackle it through an advertising ban. I believe that even now, at the 11th hour, they should think again, because it is disproportionate and based on scant and frankly implausible evidence. It will damage the creative economy, which is already under such stress, and it will have unintended consequences, like so much legislation that impacts on the media.

Also—and this is a very important point—it sets a hugely dangerous precedent for the Government to interfere with advertising freedoms, which are a fundamental aspect of freedom of expression. This is bad legislation.

As we have heard so often, the reduction in calories will be minimal, but this ban will take £200 million out of the media and creative industries when they can ill afford it and when they are in a life-and-death struggle with the all-powerful platforms. My noble friend Lord Bethell said that it would take out only 8% of revenues. When you are in day-to-day combat with the platforms for advertising revenue, 8% of revenues is a huge amount of money. More than 265 news media outlets have closed over the last 15 years, and many more will follow if the burden of regulation is increased, not cut in the way it should be.

This ban will not impact just broadcasters; it will disproportionately affect news publisher websites, too. This blunderbuss of a ban will reduce freedom of choice for advertisers and harm the ability of news media publishers to monetise content online, which is crucial for their long-term survival. At the same time, astonishingly, it will allow the tech platforms to continue to derive enormous amounts of revenue from HFSS advertising.

Here is the great irony: the platforms have a significant audience of children, because that is where children go to get their news, but they will not be impacted. News publisher websites have only a de minimis child audience but will suffer directly as a result of this policy—and they will do so at a time when the entire industry is under great stress, as countless reports, including the Government’s Cairncross and Furman reviews, the report from our own Communications and Digital Committee and a comprehensive report from the CMA, have demonstrated. In winding up, could my noble friend explain why news publishers are caught but the platforms are not? It is, as somebody famously said, “voodoo economics”.

Even at this late stage, I hope the Government will think again and drop these ill-thought-out restrictions. In case they do not—I am a practitioner of the art of realpolitik and I know this ban may end up going through—as we have heard from a number of noble Lords, we must at least make sure the policy is workable. That is the job of this House and this Committee because, at the moment, the measures are not fit for purpose.

As noble Lords know, during my career I have had one or two encounters with the issue of regulation, and I am clear that, for regulation to work properly, it must have a number of inherent qualities. First, you cannot rush regulation. Stakeholders from those affected need to have their input and they need time to adapt. That is what the amendments in this group, starting with Amendment 245, are all about. This is not just delay for delay’s sake; it is delay because that is what the real world demands. When this Bill becomes law, that is just a starting point. As my noble friend Lord Vaizey said, you have to designate a regulator, then the regulator has to implement it and there has to be public consultation on code changes. That long process could easily take the rest of the year and possibly longer.

Once that is all complete, in the real world, advertisers, agencies and media owners will need time to assess how the system is going to work in practice. This is a very complicated part of the creative economy, as the noble Lord, Lord Clement-Jones, said. You cannot just flick a switch and expect everything to change at once. It will take at least a year for all those involved in the advertising supply chain to adapt, review processes, set new legal procedures in place and so on—leaving aside the impact on the creative aspects of their work. That is why I genuinely believe that this Bill must not come into force until one year after the final publication of the rules and guidance from the appointed regulator.

A judicious approach to implementing the rules is one characteristic of sensible regulation. Another is certainty, which is what Amendment 247 and others are about. The Bill quite rightly focuses on ads where an identifiable HFSS product is shown, with brand advertising and sponsorship exempt. I applaud that, but the Bill is not crystal clear on the point. Within the creative industries, there is a huge amount of uncertainty, which is the enemy of effective regulation, about what is and is not permitted. I believe the terms of the exemption should be set out in the Bill, not least so that, if this or a future Government wish to revisit the matter, they must come back to this House to set out why they are doing it and to seek our consent. Given the potential harm this legislation could cause and the precedent it sets, that must be right.

The final aspect of sound regulation must be the measurement of its effectiveness. Regulation that does not work—and I am afraid that I am sure this will not—should not remain on the statute book simply for the sake of it. If it is found wanting—or, worse, damaging—it should be repealed. This is too important an issue to leave to chance. We should therefore know now what metrics the Government will use to measure the success of these restrictions, the definitions they will employ and how data will be collected. Will they measure the impact on the creative economy as well as on obesity? We should know. If those metrics are not met, the restrictions should fall at the end of the review period.

In the absence of dropping this legislation—I notice some reports that its demise might be part of Operation Red Meat, which we are hearing so much about, and let us hope so—our job is to ameliorate its worst aspects and ensure that it is sound and workable. These amendments do that, and I hope they will find widespread support across the Committee.

[Lord Grade of Yarmouth (Con)]

My Lords, I speak in support of my noble friend Lord Vaizey’s amendments. He said all I could possibly say to support them. This is a shocking piece of bodged legislation, which needs the support of these amendments to make it fairer and more proportionate, practical and sensible.

At the heart of all this legislation and all the speeches today, I think we are all agreed, is that unhealthy food is the real villain here. It is not the messengers, the advertisers or the media; it is the people who create the formulations that are doing so much harm and increasing obesity at a scary rate, which we can all unite in trying to fight. I am afraid that the noble Baroness, Lady Boycott, is in for a terrible disappointment if she thinks that just banning ads in some form on television is the answer to all our problems. Many Governments—

Leveson Inquiry

Lord Black of Brentwood Excerpts

Thursday 29th November 2012 Lords Chamber

[Lord Strathclyde]

My Lords, there is perhaps a small misunderstanding. The authority will not be nominated by the press. It will be a truly independent body that will not have editors on it, as the current body has.

[Lord Black of Brentwood]

My Lords, I agree with my noble friend on the need to get on with establishing a new system of tough, independent regulation. The Prime Minister has laid down a tough challenge to the newspaper industry to proceed quickly. I reassure him that the industry will rise energetically to the challenge, starting tomorrow. There is much in the Leveson principles that he referred to that the industry can agree with. The proposals can be fully deployed in the proposals set out by my noble friend Lord Hunt. As the report says on page 1769, there is no reason why the industry model should not be capable of adaptation to meet the requirements set down. I concur, and we can look at the various points raised.

Finally, I echo the great caution expressed about the role in the new system of the statutory regulator Ofcom. I should have prefaced my remarks by declaring my interest as executive director of the Telegraph Media Group. I draw the Leader’s attention to paragraph 6.16 in volume 4 of the report, which states that the recognition body would be required to determine whether the standards code met statutory requirements. That would put a state regulator at the very heart of the newsroom. Does he agree that if the industry can make rapid progress in the task of establishing a new system, such a move would be not just profoundly dangerous but completely unnecessary?

[Lord Strathclyde]

My Lords, I very much welcome what my noble friend said about the press welcoming this report as much as we do. It is for the press to come up with a very firm timetable for how quickly they will put this into effect. The issue of Ofcom is one that we will discuss over the next few weeks.