Tobacco Products Directive

Baroness Burt of Solihull Excerpts

Monday 28th October 2013 Commons Chamber

[Lorely Burt (Solihull) (LD)]

I add my welcome to your elevation to the Chair, Madam Deputy Speaker. This is the first time that I am benefiting from your wise direction; I am sure it will not be the last.

This is an opportunity to put the case for small retailers, who are caught between a rock and a hard place when it comes to the sale of tobacco. A few weeks ago, I was visited by a delegation of small retailers, a number of whom were my constituents who were supported by the publication Asian Trader. Also at the meeting, and uninvited by me, were representatives of Imperial Tobacco. I was surprised to see them and wondered what role they had to play in the proceedings. They were attending, I was told, in a spirit of helpfulness, and offered their “help” to me until I explained in no uncertain terms that I was not a friend of the tobacco lobby. However, their presence did lead me to consider the amount of influence tobacco companies have in the retail industry, and the kind of messages they are giving to tobacco retailers.

Tobacco companies have a lot of money—it is a huge industry—but as purveyors of substances that kill one in two long-term users, they do not tend to be the most popular lobbyists around. I received an e-mail from a Liberal Democrat councillor, John McClurey, who has been a newsagent for more than 30 years. He suggested that the tobacco companies were using the good names of the small retailers to lobby Parliament with their own promotional messages. He also suggested they were circulating misinformation to tobacco retailers, with the aim of scaring them into becoming a voice for tobacco manufacturers.

When I met the retailers, there was no doubt in my mind that they believed passionately in what they were telling me, but knowing the involvement of the tobacco lobby led me to re-examine objectively what they were saying in the light of wider evidence. For example, on the European tobacco products directive, my retail friends told me that banning smaller quantities of tobacco—packs of 10 cigarettes and 20 grams of loose tobacco—was wrong because it discriminated against smokers on a tight budget and smokers aiming to give up. It undoubtedly does. However, it also discriminates against minors, who are extremely sensitive to price changes. These packs of 10 cigarettes have been dubbed “kiddie packs” because they are so popular with teenage smokers.

My retail friends also believe that smuggling is a growing scourge that will be made worse by the advent of plain packaging and ever-increasing duty. According to Her Majesty’s Revenue and Customs, tobacco smuggling has more than halved in the past decade to 9% of total sales. I am not saying that 9% is not far too high, or that general statistics will help my friend Paul Cheema at his newly opened Kwik Save in Solihull if smuggled tobacco is being sold from a van near his shop. Nevertheless, despite tax hikes on cigarettes to the extent of 88% of the recommended retail price, the amount of tobacco smuggling has continued to decline. The tobacco multinationals’ concern about illicit trade needs to be evaluated in the light of their having paid billions in fines and payments to settle cigarette-smuggling litigation in the EU and Canada. They are being prosecuted for smuggling their own products, so their trying to unsettle small retailers, when some of their number are perpetrators of the problem, sounds a little hollow.

Is “plain packaging” not a misnomer, given that recent EU votes have confirmed that 65% of the packaging surface will have to carry writing and pictures warning prospective customers of the health dangers of the product? Other distinctive markings will also be required. The Government are therefore confident that plain packaging will be no easier to counterfeit when it comes under the scrutiny of government officials.

The European Parliament has voted for a ban on packs of 10 cigarettes; for a minimum weight of 20 grams for “roll your own” cigarettes; for banning characterising flavours, such as menthol, which are also particularly attractive to young people and women; and, as I just mentioned, for 65% of the surface carrying words and pictures informing people of the dangers of smoking. That is not in dispute. It has also voted against plain packaging; against the ban on slim cigarettes, which we know are particularly attractive to younger smokers and women; and against the ban on sales displays.

We await the final recommendations of the Government’s two consultations this Parliament, and we know that they are waiting for the results of the Australian plain packaging experiment, but will the Minister say how long she considers a reasonable time to wait before it can be evaluated? When will the Government report be published, and can the Minister give any insight into the Government’s thinking on plain packaging, slim cigarettes and sales displays? As I said, retailers are stuck between a rock and a hard place—between the health lobby and the need to trade—and so are the Government, but any indication she can give of what the future is likely to hold would be much appreciated.

The EU recently voted against prohibiting the purchase of e-cigarettes alongside tobacco and against registering it as a medicine. That is a sensible measure. Many former smokers attest that e-cigarettes have helped them to give up when nothing else had worked. Furthermore, making them a medical product would likely have increased their cost and reduced their availability. What is the thinking in the Department of Health on e-cigarettes? Will we follow the EU in not medicalising them, and if so, what product safety standards will be put in place?

Finally, I want to discuss proxy purchasing. Interestingly, there is no age in the UK at which the smoking of tobacco products is illegal, if children can get their hands on them. The legal age for purchasing a packet of cigarettes is 18, and retailers can be subject to serious penalties if caught selling tobacco to under-18s. Proxy purchasing—when an over-18 buys cigarettes for an under-age smoker—is illegal in Scotland, but not in England and Wales, so in the latter, the retailer can be prosecuted, but the proxy purchaser cannot.

Aman Bhura, from News and Booze in West Bromwich, says that now is the time for the Government to take the lead in the enforcement of illegal sales of tobacco. He says that

“we retailers are being forced to become the policing arm of the government... Responsible retailers will have staff trained to detect proxy selling, but it is an act which is extremely difficult to judge and prove”.

It is clear that tobacco retailers are more than prepared to measure up to their responsibilities in respect of proxy selling to under-age youngsters, but without a legal constraint to back them, what can they do? Will the Government not strengthen their arm by making proxy purchasing illegal, as it is in Scotland? Will the Minister consider changing the law to make proxy purchasing of tobacco products illegal in England and Wales?

I will leave the final word to Councillor McClurey:

“I make more profit from selling a 50p packet of chewing gum than a packet of 10 cigarettes. Sale of cigarettes represents 50% of my turnover but only 14% of my gross profit. If my customers stopped buying cigarettes and bought a packet of chewing gum instead I would be a wealthier shopkeeper.”

I look forward to the day when our retailers make a much healthier profit, when they sell fewer cigarettes and more of other products that have a better sales margin. That would be a good deal and a fair deal for everyone.

--- Later in debate ---

[Jane Ellison]

Yes, I share that concern. I saw a presentation only last week with some of those adverts and imagery. As I said, it is a key priority of ours to prevent children and young people from taking up smoking, so anything that might contribute to their taking it up is extremely worrying.

The UK’s support for the general approach agreed at the June Health Council was important in securing the qualified majority needed to avoid losing hard-won negotiated improvements to the text of the directive. Hon. Members will also be aware that the European Parliament has been scrutinising the proposal, and this is obviously where we have had some recent pushback in some areas. We were pleased to see that, on 8 October, the Parliament agreed with the Council and voted to ban packs of cigarettes with fewer than 20 sticks, to increase health warnings to 65% of the front and back of packs, to make pictorial warnings mandatory throughout the EU—as they are already in the UK—and to prohibit characterising flavours.

It should be noted that the Council and the European Parliament rejected the Commission’s proposal to ban slim cigarettes, so that will not form part of the final revised directive. As the new Minister, I made inquiries into why that was the case, and I understand that there was not enough support among EU member states or parliamentarians for such a ban. We in the UK felt that we had to go with the majority to ensure the progress of the directive, as it will be good for public health overall. That was a pragmatic decision. Like the hon. Lady, I believe that this package of measures will help to reduce the number of young people who take up smoking in the UK.

We are currently considering the detailed amendments that the European Parliament would like to make. We were disappointed that the Parliament did not support the regulation of nicotine-containing products as medicines. We believe that the medicines regulatory regime, applied with a light touch, is the best fit for these products. Although I cannot say too much more about that now, we recognise that there is a lively ongoing debate on that subject, and it is one that we are engaged in. It is also vital that we maintain momentum on the overall negotiations over the coming months, so as to finalise the directive as soon as possible.

The hon. Lady devoted some time to considering what the tobacco products directive will mean for small retailers. As a Back Bencher, I was co-chairman of the all-party parliamentary retail group, and I heard many of the same representations that she mentioned. I recognise those concerns. We recognise that some of the proposals will have impacts on tobacco retailers in regard to the range and pack size of tobacco products that they will be able to sell. During the negotiations, as with all of our tobacco control measures, we continue to consider the impacts on all areas of society, including businesses large and small.

I share the hon. Lady’s doubt that introducing the proposed revised directive, if and when agreed, will have any immediate or drastic effect on small retailers. As she said, retailers face an ongoing challenge to diversify the range of products that they sell so that they are not over-dependent on tobacco sales. British retailers are, and always have been, the most innovative in responding to consumer needs and diversifying. The earliest any new requirements would be likely to take effect in the UK would be 2016, meaning that shopkeepers have time to start making changes now.

The hon. Lady made some interesting points on illicit tobacco. Like her, I have heard that some tobacco manufacturers and retailers believe that certain measures in the proposed directive could drive more smokers to purchase illicitly traded tobacco products. We are not aware of any peer-reviewed and published studies that show that that would happen. However, we are not complacent when it comes to counterfeit or non-duty-paid tobacco products in the UK. The illicit tobacco market is complex and decisions by individuals to get involved in purchasing illicit tobacco depend on a range of factors. The proposed directive envisages a Europe-wide tracking and tracing system for tobacco products, the details of which we are still negotiating in Brussels. The European Commission says that that will reduce the amount of illicit products in the EU. Security features against counterfeiting will also allow consumers to verify the legal status of the products. The hon. Lady suggested that we were perhaps paying insufficient attention to the security features on the packaging, because they are often not very plain at all.

I am glad that the hon. Lady has pointed out that the illicit market in cigarettes and roll-your-own has diminished significantly since the launch of the first Government tobacco strategy in 2000, with the mid-point estimate of the tax gap for illicit cigarettes decreasing from 21% in 2000-2001 to 9% in 2012-13, for example, according to Her Majesty’s Revenue and Customs data. The UK’s success in reducing illicit tobacco is in no small part due to successive Governments’ commitment to, and investment in, enforcement, and that remains a key part of our policy. We should also see further progress on illicit tobacco on a global scale when the new framework convention on tobacco control protocol on illicit trade is implemented.

The hon. Lady made some interesting points about proxy purchasing. Obviously that is something that, as a new Minister, I have just begun to look at, and I was glad that she explored some of the arguments. I want to emphasise the valuable contribution that the majority of retailers make to ensuring that legitimate tobacco products are sold according to the law, including by not selling tobacco to people under 18 years old. Retailers get frustrated that we hear only about the occasional instances of poor practice that hit the headlines, and that decent, ordinary retailers do not get any credit for the way in which they uphold the law. I want to place on record my thanks to all those retailers who make strenuous efforts to uphold the law and who do not sell tobacco products to children.

I sympathise with the difficulties retailers face in ensuring that they do not make sales to under-age people. I also understand why some retailers feel that buying tobacco on behalf of a child should be an offence. However, we need to think carefully before introducing a proxy purchasing offence. I understand that the supply of cigarettes to children is a problem, but an offence of proxy purchasing would not necessarily tackle the wider problem of supply.

[Lorely Burt]

Will the Minister tell us whether any lessons have been learned from Scotland’s introduction of an offence of proxy purchasing that might be transferrable to the rest of the UK?

[Jane Ellison]

I was going to say that we are interested to see what will happen in Scotland. It is relatively early days yet, but I am certainly interested in looking at that.

Many children who smoke get their cigarettes from friends and family, and from other children who share cigarettes in parks and playgrounds. An offence of proxy purchasing would be unlikely to stop family members or friends giving cigarettes to young people. The offence was introduced in Scotland, where there is a slightly different regulatory regime, as part of a package of measures. Also, we cannot draw a comparison with alcohol because the regulatory regimes for the sale of alcohol and tobacco are different.

Enforcement of a good deal of tobacco control legislation, including age of sale, is the responsibility of local authority trading standards officers. I have asked questions about the capability of enforcing any such rules introduced. Currently, the Trading Standards Institute, while supportive in principle of any additional measures to tackle under-age access to tobacco, has told us that experience with the alcohol offence shows that there are likely to be difficulties enforcing a proxy purchase offence for tobacco. In practice, it is sometimes difficult to prove the offence and effective enforcement would entail surveillance of shopper and retailer behaviours, which can be time consuming and resource intensive. As I say, I am aware that, since 2011, there has been a proxy purchasing offence in Scotland, which was brought in as one of a number of changes—and we will keep a very close eye on how it has been implemented.

Having heard what the hon. Lady has said tonight, I would encourage Members who have evidence about the potential impact of introducing an offence for proxy purchasing to write to me, particularly if they have feedback from their local trading standards officers about the realistic potential for effective enforcement.

Let me finally touch on a couple of further points that the hon. Lady raised. As I have mentioned, the tobacco products directive does not seek to introduce standardised packaging, but it would allow the UK to proceed with that if we wanted to do so. The Government published a summary of the consultation responses, issued a written statement earlier this year and responded to an urgent question. As the hon. Lady knows and as I mentioned several times at Health questions last week, the Government have decided to wait before making a final decision on standardised packaging. The policy remains under very active consideration and the Government have not ruled out its introduction. We are assessing all the information available to us from Australia and elsewhere. I cannot give the hon. Lady a time frame, but I repeat the fact that the policy is under very active consideration. Some interesting information is coming in from around the world, not just from Australia.

We want member states to have the flexibility to make further progress on domestic tobacco control measures in certain key areas, potentially going beyond the new directive, and we have been helping to shape the final text of article 24 to try to achieve that as an objective. I hope the hon. Lady agrees that it is sensible to see what we can learn from other countries’ experience, but it is hard for me to speculate about what different impacts might be seen and when.

It has been a key strand of the Government’s commitment to reducing the take-up of smoking among young people that the display of tobacco has been prohibited in large shops such as supermarkets since April 2012. That display consultation happened under the previous Government. In April 2015, legislation extending the covering up of tobacco in all retail outlets will come into force.

I have endeavoured to try to cover all the points that the hon. Lady raised in her very thoughtful speech. As she recognises, the topicality of this debate is notable; many of the issues are being debated here and in the European Parliament. We are very much engaged in that debate. I look forward to hearing what other Members think and to hearing further from the hon. Lady on the important subject she has raised.

Question put and agreed to.