Tobacco Advertising and Promotion (Display and Specialist Tobacconists) (England) (Amendment) Regulations 2011

Lord Borrie Excerpts

Monday 11th July 2011 Lords Chamber

Baroness Thornton: My Lords, many noble Lords will be familiar with the part of the Health and Social Care Act 2009 which set in motion the regulations previously in place to enact the implementation of the display legislation to start on 1 October 2011, less than three months from today, to be in force in all shops by October 2013. The same regulations provided that small shops had an additional two years, therefore, to prepare. These regulations will not begin to come into force until April 2012 and will not be completely enforced until April 2015. This is a total delay of four years. The reason for this Motion of regret is to give the House an opportunity to discuss the reasons for such a delay and to ask what bearing the persistent lobbying by tobacco industry-funded organisations may have had on the decision that the Government have taken in this regard.

In its 32nd report, the Merits Committee raised some important points. It suggested that the House might want to seek explanation from the Minister about how the regulations could achieve the Government’s policy objectives. It pointed to the inconsistencies of the growth review, which seeks to reduce the regulatory burden on small enterprises. This might account for the delay in implementation for small shops—although I would question this anyway, and will in a moment—but it does not explain why the implementation date for larger shops is being put back. However, I accept that from today, because of the government delays, three months may not be sufficient time for large shops to prepare for this, although they have had quite a lot of notice. The Minister will need to explain the reasoning behind this decision.

The Merits Committee also called attention to the Written Statement on tobacco control issued by the Government on 9 March, in which the Government state that the take-up of smoking by young people is a particular concern. Smoking is an addiction largely taken up in childhood and adolescence and it is crucial to reduce the number of young people taking up smoking in the first place. The report went on to say that nicotine is highly addictive and that each year an estimated 320,000 young people under 16 will try tobacco for the first time and 200,000 of them will become addicted.

We are all aware of the troubling statistics which surround this issue. The Merits Committee went on to say that, taking the Government’s own baseline statistics, the 18-month delay being proposed as a result of the amended regulations may result in 4,000 young people and children becoming addicted to tobacco, with the consequent long-term health effects. I should therefore be grateful if the Minister would explain whether the Government think that this is a price worth paying for the delay in implementation.

It is worth noting that in March 2009 Norway passed a similar law, which it implemented from January 2010, allowing retailers only nine months to comply and protecting Norwegian children from tobacco marketing five years earlier than the proposals before your Lordships’ House. There is no objective evidence that the Norwegian retail trade has suffered unduly.

I understand—but I am sceptical—that the reason given for such an extended delay for small shops has clearly been the concern that the legislation might adversely affect their businesses. I am afraid I have to question this. I believe that the cynical campaign that has been mounted to delay implementation can be shown to be more for the benefit of tobacco manufacturers than for small retailers. It has become increasingly clear that what purported to be a cry of pain from thousands of small retailers was really a covert and dishonest campaign by the tobacco industry.

Members of both Houses of Parliament have been contacted by three groups, each purporting to represent tobacco retailers: the Tobacco Retailers Alliance, the Association of Convenience Stores and the National Federation of Retail Newsagents. We know that the Tobacco Retailers Alliance is, in effect, a wholly owned subsidiary of the Tobacco Manufacturers’ Association. It is the most obvious kind of front group; it does not even have its own offices but operates from the Tobacco Manufacturers’ Association headquarters. At least that is clear and transparent.

The Association of Convenience Stores can claim a little more independence, and yet it, too, is beholden to manufacturers for subscriptions, sponsorship and advertising. When asked by Stephen Williams MP, the chair of the All Party Parliamentary Group on Smoking and Health, it confirmed that it receives around £100,000 a year from tobacco manufacturers. I would, however, point out that the Association of Convenience Stores has claimed that the cost of compliance would be between £2,000 and £5,000, and yet its own survey of small shops in Ireland found that the average cost of compliance was only £300.

I regret to say that the National Federation of Retail Newsagents has been much less forthcoming, seeking to conceal tobacco industry funding of its far reaching campaign against the display legislation. It recently procured, without any cost to itself, the services of a lobby firm called Hume Brophy, which telephoned and e-mailed the offices of Conservative and Liberal Democrat MPs on its behalf in the weeks before the Government were due to announce their decision on the display ban seeking their support for the repealing of the legislation. The Government are to be congratulated on resisting these blandishments.

It was discovered that Hume Brophy also acted for British American Tobacco and the company was asked whether it was funding the campaign. At first BAT denied this but, following questions at its AGM from Kevin Barron MP, it had to admit that not only had it funded the NFRN campaign against the display legislation but that it had also had meetings with Hume Brophy and the NFRN to discuss how it should be taken forward.

Once this was revealed, Hume Brophy wrote to Stephen Williams on 7 June to apologise for its involvement in such covert lobbying—it needs to be congratulated on so doing—and said that the NFRN agreed that it should write to Members of Parliament to explain. John Hume, of Hume Brophy, wrote:

“I understand that a letter to MPs will be forthcoming from the NFRN in the next couple of days”.

So far we are not aware of a single MP having received such a letter from the NFRN. In fact, it has refused to send one.

However, instead of accounting to MPs and Peers for its dubious lobbying techniques, the NFRN has attacked the Public Health Minister for attending the All-Party Parliamentary Group on Smoking and Health celebration of the 40th birthday party of Action on Smoking and Health and for presenting ASH with an award from the World Health Organisation for its work. We know of the right honourable Lady’s commitment to this issue and she is again to be congratulated on her continuing support. Frankly, rather than attacking the Public Health Minister for her commitment to reducing the harm caused by tobacco, the NFRN should do the decent thing and apologise to MPs for covertly doing the tobacco manufacturers’ dirty work.

I believe that the tobacco manufacturers have repeatedly sought to deceive parliamentarians by concealing their central role in the campaign against the display legislation. I would like the Minister’s view of this matter. Does he agree with me that this is unacceptable and does he think that it may have undermined in some way the UK’s publicly stated commitment to live up to its obligations as a party to the World Health Organisation’s Framework Convention on Tobacco Control? Indeed, the Prime Minister is on the record committing this Government to putting an end to what he has called the scandal of secret industry lobbying.

The Tobacco Control Plan for England published in March clearly states:

“The Government takes very seriously its obligation as a Party to the World Health Organisation Framework Convention on Tobacco Control”.

A full chapter is devoted to protecting public health policy from the vested interests of the tobacco industry. Is the proposed delay not a concession to exactly those vested interests and the result of a campaign by those who sell cigarettes on behalf of those who make them? Specifically, the Government have affirmed that the tobacco industry had no hand in the development of the tobacco plan, that they would publish details of any policy-related meetings with the industry by any part of government, and that they would require those engaging with the Department of Health on tobacco control to declare any links with or funding from the industry and encourage local authorities to follow that lead. In doing so, the Government are reflecting the mood across the House when during the passage of the Health Bill 2009 the noble Baroness, Lady Northover, moved an amendment to require the publishing of written guidelines on engaging with the tobacco industry. That amendment was withdrawn as the Government undertook that the Secretary of State would write to all Cabinet members reminding them of their duties under the World Health Organisation convention.

This is a Motion of regret. I do not seek to overturn the revised regulations, but I would like the Minister to confirm the commitment of the Government to live up to their obligation under Article 5.3 of the World Health Organisation convention to protect their public health policy from all commercial and vested interests of the tobacco industry, and to publish without any further delay details of all policy-related meetings with the tobacco industry and its front groups by any part of Government. I beg to move.

[Lord Borrie]

My Lords, three years ago the Chief Medical Officer, Sir Liam Donaldson, said that the ban on smoking in enclosed public spaces, which began in 2007, had been a great success in terms of both compliance and improved health. There had been a considerable drop in the number of smokers. I believe that the enclosed spaces ban has indeed been a great success, and for our social environment—a benefit to the whole population.

But in the Health Act 2009 the Labour Government sought to go further and ban the display of cigarettes in shops in order particularly to give even further discouragement to underage smokers. I thought the case for such a ban on display was a thin one. It ignored the fact that in recent years the display has had to be festooned with off-putting words such as “Smoking kills”, plus hard hitting pictorial warnings. Moreover, evidence from the likes of Iceland and the Canadian provinces where displays are banned was somewhat speculative as to the effect on smoking among the young.

In the UK we seem to have given up trying to keep a balance between the rights of individuals to do something which is legal—to sell and consume tobacco and cigarettes—and society’s desire to help people give up smoking and stop children purchasing cigarettes. The Labour Government ruled that a display ban should come into effect in 2011 for large outlets, but to protect small and medium-sized enterprises to some extent from the costs of the new regulations they should be subject to a ban only from 2013. I leave aside the arguments that this distorts competition between one group of retailers and another, and it may have been justified. Now, because of the recession, the present coalition Government seek to delay the imposition of the ban a further six months for large retailers, and a further 18 months for small retailers. My noble friend Lady Thornton from the opposition Front Bench regrets these delays. I regret I cannot join her in grumbling about the modest delays that have been proposed. There are more restrictions in the offing: from campaigning groups, particularly ASH; a ban on open-air smoking—in parks and beaches, such as applies in parts of Australia—bans on smoking in cars, which would be very difficult to enforce; and, of course, banning the use of brand names, which cropped up during the discussions on the Health Act a few years ago.

There is one country in the world to which I draw the attention of the Government: Bhutan, known perhaps to many walkers on the lower levels of the Himalayas as an interesting country somewhere between India and China. I mention Bhutan because all smoking is banned there, as are all displays of cigarettes and tobacco. How far do the Government want to go in their efforts to discourage the young from smoking? It is a splendid objective, but one which sometimes ignores the other aim of allowing people their own individual choices.

[Lord Naseby]

My Lords, I am not going to repeat what the noble Lord, Lord Borrie, has said, other than to say that I agree 100 per cent with what he has put before your Lordships’ House. I will add a couple of points.

It has to be the right of any manufacturer in this country who is trading a lawful product to consult the Government of the day, the Ministers responsible for their industry, and equally members of the Opposition and all Members of Parliament and of the House of Lords, MEPs, et cetera. That has to be its legitimate right, and I hope nobody is suggesting that some civil servant is going to refuse to communicate with this particular industry. It is a legitimate industry at this point; it has the right to trade. These proposals, albeit at a short delay, are still a restraint to trade for our retail businesses.

I had nearly 30 years in advertising and marketing, and one of the things your Lordships’ House recognises is skill and experience across whole walks of life. I dealt with a great number of branded goods in all sorts of different fields, some of which were sensitive areas. There is no evidence that having a ban on displays does anything for consumption. What it does do is prevent the consumer from deciding to change brands if they so wish. There is no firm evidence, and it is no good anybody shaking their heads—as the noble Lord, Lord Borrie, has said, the work that has been done in Canada, Iceland and the other places is all peripheral: it would not stand up to the slightest bit of analysis in any other scientific area.

I say to my noble friend that while I am pleased there is a short delay, I hope very much that the Government will think again in this period and certainly not think about plain packaging, which frankly would bring the whole of the package industry down on the neck of the Government and quite rightly so.