Health and Care Bill

Lord Vaizey of Didcot Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

ITV asked me specifically about the unfairness of limiting terrestrial broadcasters to these restrictions while allowing online ones to do what they like. That is why I have introduced Amendment 253AA, to try to place restrictions on online platforms. I know that is much more difficult, but that does not mean that we should not try. Cash must not outweigh children’s health. I support this government amendment and I am completely thrilled that they have tabled it. I just urge the Government, on behalf of all the charities and outfits that I mentioned: do not back-track.

[Lord Vaizey of Didcot (Con)]

My Lords, I support the amendments in my name and I may also comment on some of the amendments that I have signed. I am delighted that my noble friend Lord Ashton mentioned Nicholas Parsons at the beginning of this debate. I will try to avoid repetition and hesitation, but the reason I am delighted is because Nicholas Parsons was an Old Pauline and I am president of the Old Pauline Club—I just want to put that on the record. I refer to my registered interests, particularly my work with the media boutique bank, LionTree.

I confess that I am still slightly smarting from the remarks of the noble Baroness, Lady Boycott, who seemed to imply that it was inappropriate for me to put down these amendments because I had not been campaigning for children’s health. The reason I put down these amendments is because I have always campaigned for and supported the importance of public service broadcasting. One unkindness should not follow another, but I wondered as I looked at the noble Baroness—who was an extremely distinguished newspaper editor—what she would have done if the Government were legislating to eradicate HFSS advertising from newspapers. I am sure that she would have stuck to her principles. The thought occurred to me that I might bring back an amendment on Report to ban it from newspapers, so that that would at least ensure that the fourth estate paid attention to this important issue and the impact that it will have on our media. I am afraid that that would probably lose me the support of my noble friend Lord Black, so I may have to think twice about that.

It will be quite clear from the direction of my remarks that I think these proposals are wrong-headed and extremely damaging for our public service broadcasters. I gather that the Government’s own impact report assesses that they would reduce calorie intake in children by 1.7 calories—that is, as noble Lords will know, either a Tic Tac or half a Smartie, depending on your predilections. However, it is estimated that they would cost broadcasters some £200 million a year.

In the debates that I take part in on the future of our media, we rend our garments thinking about how our public service broadcasters will compete against the likes of Netflix, Disney+ and Amazon Prime. We think about the importance of public service broadcasting provided by companies such as ITV and we talk about the potential privatisation of Channel 4, which is a government flagship policy. But as the Government move Channel 4 towards the marketplace, these amendments will hobble it and its income.

What depresses me most of all, and where I think we would have common ground with those who very rightly campaign against obesity and put in place strategies, is that these clauses are a fig leaf and a complete red herring. They are an excuse for the Government to say that they are taking action on obesity when these measures will have zero impact on obesity. What is so galling is that they are based on no proof at all—they have become a sort of mantra for the Department of Health. I fought these proposals when I was a Minister at DCMS, and it depresses me that DCMS has not had the clout to see them off this time round.

There is an absence of a comprehensive policy on school food and on education about nutrition in schools. By the way, at the risk of annoying all sides in this debate, I am not a libertarian or a non-regulator. I supported the sugar tax and I would support measures that looked at, for example, the prevalence of takeaways, particularly in low-income areas; I would look at how supermarket promotions are undertaken; and I would look at the content of food and the prevalence of processed foods. But if noble Lords look at, for example, Leeds or Amsterdam, where obesity rates have fallen, they will see that it was because of interventions in primary school to the food children were eating and the education they were receiving.

Where an advertising ban has been implemented as an excuse for an anti-obesity policy, it has comprehensively failed. At the risk of being trolled in both French and Canadian on Twitter, I gather that, in Quebec, which has had a ban for 40 years, the Québécois have gotten fatter, faster, than the rest of Canada. Nowhere has an advertising ban had an impact on obesity.

Of course, further evidence of why this ban will not work is that there has been no analysis of who sees advertising on our public service broadcasters. Some 95% of TV viewing before 9 pm is by adults, and Ofcom has concluded that a 9 pm ban could be disproportionate. It also—I am surprised by the remarks of some noble Lords—shows a comprehensive misunderstanding of how advertising works. If you are going to eat a burger, you are going to eat a burger—unless you live in Leeds and have been well educated in your primary school. The purpose of the advertising is to encourage you to eat a McDonald’s burger rather than a Burger King burger; it is not simply to increase the number of burgers eaten.

When this ban comes in—I am sure it will; it has its own illogical momentum—you will see in-store promotions in supermarkets and, worst of all, price promotions. If McDonald’s cannot persuade you through an advert to eat its burger rather than a Burger King burger, it will persuade you to eat its burger because it is 99p, whereas Burger King’s burger is £1.29. It will reduce the opportunity for our food producers to advertise healthy products and it completely misses the opportunity to look how our technology has become so advanced that it can target adverts in a much more sophisticated way, working with industry and broadcasters rather than introducing this appalling and crude ban which will hit our broadcasters in the face.

I turn to the amendments in my name. The first point of them, to a certain extent, goes with the grain of the government amendments, which is to say that we need flexibility on implementation. If you are going to implement this ban, advertisers and broadcasters need time to come to terms with it. As things stand, the ban is due to come in at the end of this year, on 1 January 2023. As I said, the Government have allowed some flexibility, because they know there will have to be secondary legislation, consultation, a process of designating the regulators, and guidance, before the final version is published.

However, these government amendments give no clear timetable. Businesses need one, with time to understand the secondary legislation and the final detailed regulatory guidance. They need time for their marketing teams and agencies to absorb and fully understand the changes required. They cannot just implement them the day they are published. New rules require familiarisation, to allow for internal review processes, legal guidance and interpretation. As many noble Lords know, it can take up to a year or even more to plan, develop and execute an advertising campaign, and companies are already trying to plan for 2023 with many unknowns. It is a lengthy and costly investment, and involves issues such as how you position your business for the long term. Companies do not want to get this wrong and be forced to pull their advertisements or face the Advertising Standards Authority adjudicating against them.

Let us say that the Bill becomes law two months from now. It would then have to go through the following process before the advertisers know the final shape of the rules. Ofcom must be designated as the regulator, and it must then designate the day-to-day regulator—it is likely to be the Advertising Standards Authority, but Ofcom will have to consult on that. If it is the Advertising Standards Authority, that must then ask the Committee of Advertising Practice to put together the new rules to go in the advertising codes. Of course, the Committee of Advertising Practice will have to run a public consultation on this. All this will take until at least the end of the year, at which point the Government presumably expect industry to have got it immediately and be ready to act.

Here are just some of the gaps in knowledge the industry faces. For example, new Section 321A(2)(a) in Schedule 17 contains an exemption from the watershed and online advertising bans for small and medium-sized businesses. They can continue to advertise food products, including HFSS, but larger companies cannot. A consultation is forthcoming, but how do you determine the size of the business? Could a global business still be an SME if it has just a few employees in the UK? What about the now ubiquitous third-party delivery companies? Where does their liability sit? On the application of the Nutrient Profiling Technical Guidance, it is vital to understand what products will be defined as HFSS for advertising and promotions—but this is guidance, not law. When will the guidance be updated and published so that companies can calculate the NPM scores for their products? Will a standard online calculator be shared? Because this is guidance, there will be no parliamentary scrutiny of how this has come about.

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[Lord Stevens of Birmingham (CB)]

My Lords, perhaps channelling the noble Baroness, Lady Deech, from this morning, I congratulate the Government on including in the Bill these measures to tackle childhood obesity. As we have heard, with one in four children not just overweight but clinically obese, we are storing up huge problems for the future because we know that what starts in childhood continues into adulthood. In that sense, diet is destiny. Unfortunately, obesity is the new smoking. We know that it is the cause of avoidable heart attacks, strokes, 13 different types of cancer, and respiratory disease, and causes a far higher risk of dying from Covid. Clearly action is needed, and the Bill makes a start.

If anything, these measures, which are certainly proportionate, may be overly targeted. Some of the criticisms levelled at the Bill should have given rise to amendments to extend its scope to deal with some of the loopholes or to level the playing field into other digital aspects that people are concerned about. That would have been a constructive response to legitimate concerns. Instead, I cannot help feeling that this morning we have heard from opponents who are simultaneously arguing that the measures in the Bill go too far and at the same time will not be effective enough, and to ensure that this becomes a self-fulfilling prophecy they have included amendments which would essentially fillet the Bill of its active ingredients.

These are familiar tactics. This is the tactic of deny, dilute and delay. The first is denying, claiming to us as parents that ads and marketing make little meaningful difference to kids’ consumption; but on the other hand we have companies—presumably rational economic actors—spending maybe hundreds of millions of pounds every year on the basis that exactly the opposite is true. Like Schrödinger’s cat, which is simultaneously dead and alive, it seems that junk food advertising and marketing simultaneously does and does not work. What is at stake here is not quantum physics but the physical and mental health of millions of children.

[Lord Vaizey of Didcot (Con)]

Given the noble Lord’s extraordinary expertise, having worked all over the world, does he know any example of any country where a junk food advertising ban has had an impact on obesity? This is a genuine question.