Health and Care Bill

Lord Moylan Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

I felt strongly about this issue for many years, because I have seen it slowly trundle down the track—the train leaving the station. I want to reach out a hand and say I have enormous admiration for some very close friends who campaign vigorously on obesity, and who sent me some very rude emails last night after reading the editorial in the Grocer. I understand why they are passionate about the ban as a great signal that progress is being made on obesity. But since 1997, successive Governments have come up with a total of 640 obesity strategies and none of them has been implemented or worked. This is an excuse for an obesity strategy. If noble Lords support my amendments, we can force the Government to go back and to come up with something that will actually work—which, in my opinion, is education for children and great nutrition in schools.

[Lord Moylan (Con)]

My Lords, it is a great pleasure to follow my noble friend Lord Vaizey of Didcot. Might I say, before I get into my stride, that certain noble Lords may have received an email that emanated a week or so ago from what I call the “cold dip” wing of the Conservative Party. Essentially, the message was, “Those rotters Vaizey and Moylan are out to spoil our whizzo scheme”. This is not true, in my case. Unlike other speakers, I declare that I have no interests to declare. I am not aligned with the food industry, the advertising industry, the broadcasting industry or any of the charities that wish to restrict, ban or control various foods and drinks. That seemed to cause a little upset to the noble Baroness, Lady Boycott, who seemed to think that because I could speak in a disinterested fashion I was somehow precluded from taking part in the debate, but I hope noble Lords will not agree that is the case.

I have put my name to a number of amendments in the name of the noble Lord, Lord Vaizey. The ones I have signed up to are essentially to do with giving enough time to implement the ban, if it is brought into effect, and I hope that they are accepted. I note that the Government have brought forward amendments of a similar character; they improve the Bill, but they do not go as far as they should. But it is a good sign, and it shows that what we are engaged in here is improving the Bill, not trying to destroy it.

I will add a particular word in support of my noble friend’s Amendment 247A, which seeks to make the identification of HFSS food a matter that would be subject to parliamentary scrutiny. In effect, what the Government are seeking through this schedule is a power to make binding law—with all the apparatus of fines and other enforcement—by way of mandatory guidance that will not be subject to parliamentary scrutiny. Instead, business planning and investment will always be at the whim of civil servants with no recourse to Parliament. That is not a situation that, in other circumstances, your Lordships’ House would feel comfortable with. We should apply the same standards here and insist that, with Amendment 247A, parliamentary approval is required before these punitive measures can be amended.

The other amendments in this group in my name cover a wide range of issues, but all of them are aimed at helping business plan for and implement the bans that the Government contemplate. That said, I noted last Friday that “Red Box” in the Times was reporting a change of heart by the Prime Minister on the whole policy of introducing the advertising and promotions ban. If this is true, we can happily move on and ignore Schedule 17, since all the evidence—including the Government’s own impact assessment—shows that the policy will, as my noble friend said, have a minuscule effect. The Government’s own assessment suggests that there will be a reduction of fewer than three calories a day. I ask my noble friend the Minister to confirm, when he wraps up, whether or not this planned change of policy is in hand.

Amendments 247, 250A and 253A in my name deal with the question of whether the ban applies to brand advertising and sponsorship—already mentioned by the noble Baroness, Lady Boycott, and my noble friend Lord Vaizey. This concerns advertising when no product of an unhealthy character is included in the advertisement or sponsorship statement. Putting the brand advertising exemption into the Bill is important for business—businesses which are looking for certainty as they are already planning advertising campaigns which will run after 2023.

The exemption for brand advertising was confirmed in Committee in the other place when the Minister there said:

“Products are deemed identifiable if a person could reasonably be expected to identify the advertisements as being for that product. This means that brand advertising is not in scope of the restrictions, as the purpose of the restrictions is to prohibit identifiable products.”—[Official Report, Commons, Health and Care Bill Committee, 26/10/21; col. 676.]


He made similar remarks on Report. This is helpful but putting the exemption into the Bill—alongside the other exemptions—would mean, should the Government wish to revisit this exemption in the future, that they would be obliged to return to Parliament to set out their reasons for doing so and seek the consent of both Houses.

The noble Baroness, Lady Boycott, commenting on this, seemed to say “Why do we need all this paraphernalia? Let’s just trust the Government and go with what they say”. I almost fell off my Bench when I heard her say that. So often in this House we are saying quite the reverse; we are saying let us not trust the Government and insist that, if we want something to happen, it should be on the face of the Bill. That is all I am saying. I believe the Government of course, and in my own small way I trust the Government—but Governments change. If we believe in this, let us see the Government put it on the face of the Bill. This has been called for by the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, which have signalled their dissatisfaction with this way of proceeding.

I turn to Amendments 249A, 252A and 257A in my name, which concern how the Government will assess the effectiveness of the ban. I am assuming, perhaps optimistically, that all noble Lords will agree that the restriction on freedom of expression involved in the Government’s policy should be continued only if it is seen to be effective in its purpose of reducing calorific intake. Indeed, that is the Government’s view, because the Bill contains a five-year review of the effectiveness of the restrictions, in line with better regulation principles, but it is not clear how “effectiveness” will be judged.

The purpose of my amendments is to seek some clarity on the issue now, as we adopt the new rules, so that the effectiveness criteria are not shaped retrospectively in five years’ time. This needs to be done now, in the interests of transparency and to enable the collection of data. It also needs to be done if the industry is to respond by changing its product mix—something which the noble Baroness, Lady Boycott, said she hoped for and looked forward to, and said there was evidence of its having done so in advance. But unless it understands in advance the criteria by which the ban will be judged effective, how can it possibly begin the process of changing the product mix to meet those criteria? The lack of impact of the ban is clear, but the criteria judging how it will be assessed effectively need to be addressed right at the outset.

There is also the question of what the Government will take into account in assessing those criteria. Their impact assessment envisages that the policy will likely reduce calorie consumption by around three calories a day, which is roughly equivalent to half a gram of butter, or one-five-hundredth of a standard pack of butter. This is so small as to be insignificant in terms of health benefits, yet the policy will undoubtedly have wider economic benefits, including on competition, innovation, prices, media revenues, advertising and the wider creative industries. Are the Government going to assess this wider picture?

--- Later in debate ---

[Lord Rennard (LD)]

My Lords, for decades, all the various weak arguments associated with the tobacco industry, opposing tobacco regulation, have been comprehensively and completely disproved by the effectiveness of that regulation at reducing the prevalence of smoking rates. Tonight, we will argue why we need to go further with measures of tobacco regulation to further reduce the prevalence of tobacco smoking. I will speak briefly on Amendments 276, 277 and 278.

It is topical that, this week, mission seven of the Government’s Levelling Up White Paper committed

“to narrowing the gap in Healthy Life Expectancy … between local areas where it is highest and lowest by 2030”.

As Ministers regularly acknowledge, half of that gap is down to smoking, so real commitment to levelling up means that immediate action must be taken on these issues.

The tobacco-related amendments in this group will assist the Government in their stated aim to reduce the prevalence of tobacco smoking to below 5% by 2030. Amendment 276 requires the Secretary of State to introduce health warnings on cigarette sticks and rolling papers, in addition to the existing pack warnings. The claim that there is not yet sufficient evidence to justify the policy is a very weak excuse for inaction, and similar claims were made before the introduction of health warnings on cigarette packs. That is why the tobacco industry opposed them so strongly. These warnings on the packs are proven to be effective in reducing the prevalence of smoking tobacco, saving the lives of some of the people who were addicted to tobacco.

What is effective on the pack must be effective on the product, and 29 different studies have concluded that this would be the case. Other countries are considering this measure, and there is no reason why this country should not again lead the way.

Amendment 277 requires the Secretary of State to mandate pack inserts advising smokers about how to quit, and we know that very many smokers do want to quit. When the Government announced their smoke-free ambition in 2019, they said they believed that there was a “positive role” for such inserts, which they would consider as part of their review of regulations on exiting the EU. But the Government have inexcusably held back so far, making the lame excuse that

“further research”

is supposedly required to

“establish the public health benefit”—[Official Report, Commons, Health and Care Bill Committee, 28/10/21; col. 813.]

before proceeding.

The best research would be to introduce the inserts—at worst a harmless policy and something the tobacco companies could easily pay for from the huge profits they make from shortening the lives of half their customers. As the noble Baroness, Lady Masham, said, pack inserts have been mandatory in Canada for two decades. They have been shown to enhance motivation to quit, increase quit attempts and sustain quitting tobacco.

Amendment 278 would close a loophole in current legislation. In May 2020, it was rightly recognised that menthol can hide the harsh taste of tobacco and make cigarettes easier to smoke and more appealing to children; that is why it was banned. However, a massive loophole allowed flavouring to continue. The Government’s response on this issue in the other place was that

“it is not clear how a ban on flavours would be enforced in practice, as it would include a ban on flavours that do not give a noticeable flavour to the product.”––[Official Report, Commons, Health and Care Bill Committee, 28/10/21; col. 815.]

However, this has not been a problem in either the Canadian provinces or our European neighbours, such as Germany and Finland, which have successfully implemented a complete ban on flavourings.

In the year after the ban on menthol cigarettes came into force, Japan Tobacco made more than £90 million in profits from selling 100 million packs of its so-called “menthol reimagined” brands, which, it argued, were entirely legal. The loophole must be closed. I hope that the Minister will confirm that the Government plan urgently to step up a gear on tobacco regulation and support the tobacco-related amendments in this group.

[Lord Moylan (Con)]

My Lords, I am aware that, in your Lordships’ House, any lack of zeal for persecuting smokers marks one out as an aberration, but some realism has to be brought to this debate. It is my understanding that the Government will rightly resist these amendments so, in the interest of brevity, I will leave it to my noble friend the Minister to give a detailed rebuttal of each of them. However, I have a few things to say.

Unless smoking tobacco is made illegal, which would only bring with it all the organised-crime consequences associated with illegal drugs, the UK will not be smoke-free by 2030 or any other foreseeable date. There is likely to be an irreducible demand for smoking among both a small core of regular smokers and a wider population of people who enjoy the occasional cigarette. A sensible policy would recognise this and seek to accommodate it. There are widely understood risks to health associated with smoking, of course, but, as we have heard in this Committee, so there are with fat, salt, sugar and even fluoride. Despite all that, we have the constant efforts of well-funded zealots to bully and humiliate smokers and place burdens in the path of businesses engaged in the manufacture and distribution of this lawful leisure product.

Each of these amendments falls into one of those categories in one way or another, despite the smoothly expressed words of those who tabled them about increasing public information and the like. The public are already better informed about the risks of smoking than about almost any other topic. The UK is already highly regarded globally for its success in reducing the number of smokers. Those who wish to give up smoking deserve some modest help from public authorities, I agree, but they can be helped in other ways—for example, by diverting into products with much lower health risks. However, the campaigners against smoking cigarettes have been almost as determined to kill vaping as an alternative—although, as was indicated by the speech of the noble Baroness, Lady Northover, even public health officials are now beginning to question whether the initial blanket opposition to vaping is preventing some people making the transition from smoking cigarettes.

A similar question arises now as non-combustible tobacco products increasingly come on to the market. These contain tobacco but it is not heated to the point of combustion, although they still deliver nicotine to the user. Most of the harmful effects of smoking come not from the nicotine as such but from the smoke. Non-combustible tobacco products do not give rise to any smoke. The Government should be able to say, and make clear in their tobacco control policy, whether there should not be distinct regulations covering, separately, combustible and non-combustible tobacco products. I hope that my noble friend the Minister will be able to assure me that this will be so on sound public health grounds.