Tobacco and Vapes Bill (Thirteenth sitting)

Debate between Alex Barros-Curtis and Caroline Johnson

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. I rise to speak to amendments 4, 95 and 94; as they are very similar, my comments will apply in the generality. It is disappointing to hear the shadow Minister’s cynicism about the commitments made by the Minister at the Dispatch Box.

[Dr Johnson]

I was merely giving examples.

[Mr Barros-Curtis]

She may well have given a few examples—I can think of a litany of examples from the previous 14 years of Tory Government. However, that would stray from the amendments, and as we do not have the time, I will not indulge the Committee with that. But I would suggest that that cynicism is not merited because, as the Minister and his colleagues in the Department of Health and Social Care have shown in these sittings—

Tobacco and Vapes Bill (Eleventh sitting)

Debate between Alex Barros-Curtis and Caroline Johnson

Committee stage
Thursday 23rd January 2025 Public Bill Committees

[Dr Johnson]

I thank the hon. Gentleman for his intervention. He comes to this debate with significant experience as a pharmacist himself. In bringing forward this amendment, it is not our intention to create a loophole. None of us wants to see children vaping or using nicotine products and developing an addiction they struggle to quit for the rest of their lives, with the associated costs to their health and their purses. However, I want the Minister to assure the Committee that he has considered the position of pharmacists and people who will legally be selling these products as a stop smoking device, perhaps in a hospital clinic or as a health professional, and made sure they will not be criminalised.

If we are to follow the chief medical officer’s advice—that vaping is not suitable for children but is suitable for adults who smoke as a harm reduction measure—and are to have that harm reduction process in place, which I believe is the Minister’s intention, it is important to consider how it will continue under these regulations. It is important to consider how pharmacists and other health professionals will be able to have discussions with their patients or clients in which they may wish to say, “Vaping is better for you,” and in so doing effectively promote the process—not a specific product, but the genre of products.

[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

I thank the hon. Lady for giving way. I share the concerns expressed by the shadow Minister and by my hon. Friends about inadvertently creating a loophole, which we know the tobacco industry and others will drive a coach and horses through. I understand that part of the purpose of tabling the amendments is to get reassurance and clarity on certain aspects of the Bill, but on the point she was just making, is not the relevant provision subsection (1)(a), which refers to the person

“acting in the course of business”?

I am sure the Minister will clarify later, but perhaps the clause deals not with medical practitioners, pharmacists or doctors, but with media agencies or companies whose reason to exist is as a business for selling media, for publishing, for design. They do not operate cessation services and are not medical professionals or pharmacists themselves. In the realm of instructions to a service industry, whether it be a publisher or a business that designs advertisements, does this provision not simply make it crystal clear that, no caveats, they cannot do anything that is listed in the clause, because to do so will be an offence?

[Dr Johnson]

I thank the hon. Gentleman for his intervention, but while pharmacists are highly trained clinicians with the capacity to prescribe a number of products in specific cases, they are also businesses. One’s local pharmacy is a business. Pharmacists sell products; they take money and make variable amounts of profit. A GP is a private entity, as the Minister will have learned during the national insurance contributions debate. Some GP practices are dispensing practices—the GP prescribes a product, which is dispensed from that practice. There are also private clinicians who provide GP surgery or stop smoking services at a price. I do not think that “in the course of business” necessarily provides the distinction that the hon. Member for Cardiff West hopes it does, but perhaps the Minister will provide further clarity.

It might be possible for the Minister to include an extremely narrowly drafted exemption for medical professionals providing advice in relation to stop smoking services and antenatal clinics giving advice to a current smoker, but perhaps he feels that those clinicians are covered already. One of the reasons for tabling the amendments is to have this debate and ensure that the clauses are carefully considered. All of us, on both sides of the Committee and the House, want to improve the health of the nation; we all want the Bill to improve the health of the nation. If the chief medical officer’s advice is that for adult smokers, vaping is better, those products need to be available to adult smokers.

I will move on to clause 115, which extends the offence in clause 114 of publishing advertisements to those who design the advertisements for regulated products, such as tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products. As in clause 114, to commit the offence the person must know that the advert has the purpose of promoting one of the regulated products and that it will be published in the UK. The latter part is important. Again, I would like the Minister to ensure that there is no loophole for people to design things and say they are expecting them to be promoted abroad, and then they are promoted in the UK. That could be quite a significant loophole. Businesses could get around that with contract clauses, I suspect.

Subsection (2) establishes the penalties for the offence, which are a conviction on indictment of two years, a fine or both. Summary convictions carry varying penalties based on the jurisdiction in which the offence was committed. That does leave the situation where somebody who has committed the same offence in England, Scotland and Wales by publishing it across those jurisdictions could face several different fines in different jurisdictions for exactly the same advert.

Another question is about the designers. Individuals may be involved in the design of advertisements, but not have full control over the final content or how the advertisement will be published. Should liability be extended to individuals working on the design, or should it lie more squarely with the business or entity that ultimately publishes it? Is it fair to hold designers accountable for advertisements over which they have limited control? If they have only designed part of the advertisement, and it is not the bit in which the product is promoted, will they still be liable for the whole advertisement?

Clause 116 introduces another offence, this time for businesses that print advertisements that promote tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products. They must know or have reason to suspect that they are printing an advertisement for those products—if they are printing it, they should know what they are printing—and that the advertisement will be published in the UK. Again, that will presumably have to be dealt with by contract law and involve some quite significant fines.

Clause 117 makes it an offence for persons acting in the course of business to distribute the advertisement. The question here is about physical and digital adverts. If a person is distributing the adverts on a sheet of paper, putting billboards on the wall or driving around a truck with a billboard on the back, it is clear that they know what they are doing and it is clear who is doing it. If adverts are appearing online or being distributed online, can the Minister specify who will be held responsible? Could somebody sharing an image that was produced by somebody else be a loophole?

Clause 118 expands the scope of responsibility to those who cause advertisements to be published and distributed within the UK. That seems sensible.

Clause 119 is the Government’s attempt to focus on the businesses that provide internet services. The provision is quite broad. Not all providers are UK-based, though. If they are not, how can they be held accountable? The provision could be seen to apply to various types of online platform, including social media search engines and website hosts. The key issue is whether a business that merely provides a platform or service for the publishing and distribution of advertisements can be held liable for content that is uploaded or shared by third parties, particularly where there is a huge volume.

The clause places responsibility on service providers that know or have reason to suspect that advertisements promoting tobacco or vaping products will be distributed through its services. That could apply to a wide range of internet service providers, from major global tech companies that are household names to the smaller, niche providers that operate in the UK market. I understand why that is important, but will the Minister say more about the person who is paying for the advertisement? The Bill covers publishing, designing and distributing an advert and providing it on the internet, but what about the individual paying for it? Ultimately, an advertisement rarely comes for free. How is that to be regarded?

The measures to reduce advertising for vapes and smoking products are sensible public health measures to reduce uptake. As we discussed in the debate on diet and obesity earlier this week, advertising clearly works. I recalled in that debate some of the adverts I remember from my childhood, such as “The red car and the blue car had a race” for Milky Way—I was pleased that the blue car won in that case, Sir Roger—and “A finger of fudge is just enough to give your kids a treat”. Those memories stick in the mind for many years. Advertising is effective and induces children to try products, so banning advertising for vaping and smoking products should be very beneficial, but I urge the Minister to consider whether he has covered the full scope of those who are responsible for adverts and at the same time excluded those who may play only a very small part in the advert and not realise that it will later become an advert for a smoking or vaping product. Has he considered carefully how a medical professional, clinician, pharmacist or similar person can still provide and openly discuss vaping products with their patients and clients, so that they can use them as a quit aid?

Tobacco and Vapes Bill (Twelfth sitting)

Debate between Alex Barros-Curtis and Caroline Johnson

Committee stage
Thursday 23rd January 2025 Public Bill Committees

[Dr Johnson]

My hon. Friend is, of course, correct.

On advertising and sponsorship, page 101 of the impact assessment states:

“Sponsorship agreements are a form of indirect advertising”—

I agree—

“and there has recently been growing concern about the existence of agreements which promote vaping and nicotine products. These agreements normalise the products and may make them seem cool, having a potentially negative influence on the usage of the products among children and non-smokers.

For nicotine vapes, Ofcom regulations prohibit sponsorship of news and current affairs programmes, and any sponsorship of programming which promotes nicotine vapes. The Communications Act 2003 also prohibits sponsorship of on-demand programme services or a programme on these services which promote nicotine vapes. However, for broader settings such as sports events and teams, music festivals and cultural events, sponsorship which promotes nicotine vapes is permitted.”

It is good that the Minister, in this clause, seeks to prevent such sponsorship—particularly the sort of sponsorship that targets children.

Subsection (1)(a) of both clauses states that a person is party to an agreement entered into “at any time”. That provision does not appear to differentiate between agreements made before and after the Bill becomes law. I understand that the Minister wants to ensure that there is not a sudden flurry of activity in the commercial world to put sponsorship agreements in place before these regulations come into force—we do not want companies to say, “Well, we are bound by this contract for so many years, Minister. We are stuck now”—but does he intend to apply the clause retroactively? Somebody who saw the Bill when it came before the House in March and April, saw it in its other format, or saw the manifesto commitments of all major parties to this Bill in some form or another, may have entered into such agreements already. I would be interested to hear what plans the Minister has to deal with those circumstances.

[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

In my previous life, I worked in commercial contracts. The hon. Lady can be reassured that a typical commercial contract would require that any participant to it must adhere to the laws and applicable regulations in any jurisdiction in which the contract is governed. Regardless of the Government’s intention, which I am sure the Minister will talk about, there should be an overarching clause in most standard commercial contracts about adherence to applicable laws and regulations in the jurisdiction to which the contract applies.

[Dr Johnson]

I thank the hon. Gentleman for his contribution. That is another example of why it is important to have a wide spectrum of people on Committees. Of course, that is usually the case, but I am interested to know what the Minister’s intention is with “at any time”. Does he intend it to apply to contracts retrospectively? Presumably he does, but I want to clarify that.

I welcome the constraints on tobacco, vape and nicotine product advertising and sponsorship for this purpose, but I would be grateful if the Minister could answer those questions.

Tobacco and Vapes Bill (Eighth sitting)

Debate between Alex Barros-Curtis and Caroline Johnson

Committee stage
Thursday 16th January 2025 Public Bill Committees

[Liz Jarvis]

I have one sentence left.

The amendments would ensure that the penalties imposed for regulatory breaches contribute directly to mitigating the broader harms caused by tobacco and vaping.

[Dr Johnson]

My understanding—the Minister may correct me if I am wrong—is that the money from FPNs would go into the relevant Consolidated Fund once the enforcement costs of investigating an issue in the FPN have been deducted by the local weights and measures authority. Were these amendments to come into force, the Government would need to provide the extra money to ensure that the enforcement agencies can still function, because at the moment some of their money is recycled from the FPNs, and that would not be the case.

I understand the hon. Lady’s desire to ensure that the money that comes from FPNs for the sale of tobacco and other relevant products to under-age individuals is used to improve public health, but in practice if the money goes into the Consolidated Fund, the Government can use it for whatever purposes they deem useful for public health. There is therefore nothing to stop them using it entirely for public health, and for this House to decide what it should be spent on, because that is how the Consolidated Fund is spent. In my view, having a separate fund administering the FPNs would add an extra layer of bureaucracy, so I do not support the amendments, although I support the principle behind them of trying to ensure that public health is good, because all parties want that.

[Mr Barros-Curtis]

I appreciate that the hon. Member for Eastleigh is perhaps in the invidious position of having to talk about something that is not the amendment she originally authored, but I share the shadow Minister’s concern.

I note that the current drafting of clause 38 has respect for the devolved position. I am the Member for Cardiff West, so I take a particular interest in the Welsh Consolidated Fund. I am concerned that amendment 2 would replace those words with

“the relevant Local Health and Wellbeing Board”,

so it does not take into account the devolved position with respect to Wales. I therefore suggest that the amendment be withdrawn.