Health and Care Bill

Baroness Penn Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

[Baroness Penn (Con)]

My Lords, this has been an important and engaging debate. There has been consensus that childhood obesity is one of the biggest health problems this nation faces—and maybe not just a health problem. We have also talked about the impact of inequality and broader life chances. The latest national child measurement programme data, from 2020-21, showed that some 40% of children leaving primary schools in England were overweight or living with obesity.

That is why, as part of our ambition to halve childhood obesity by 2030, it is imperative that we reduce children’s exposure to less healthy food and drink product advertising on TV and online. To be clear, the Government know that this is not a silver bullet, and this action alone will not solve the problem; it is part of a multifaceted plan. I can reassure my noble friend Lord Grade and the noble Baroness, Lady Walmsley, that this includes working with manufacturers on reformulation and to produce healthier food. Indeed, we are clear that products that are reformulated to pass the MPM will be able to be advertised, and we hope this provides a motivation for brands to do so. Obesity is a complex problem that builds over time through frequent excessive calorie consumption. Through this one action, as part of a wider programme, we estimate that we can remove up to 7.2 billion calories from children’s diets per year in the UK.

Turning to specific amendments and looking first at what should be covered by these priorities, I will speak to Amendments 253B, 254A, 254B, 247A, 249ZA, 249ZB, 250B, 252ZA, 252ZB, 248, 248A, and 251. We believe that the current approach to defining food that is less healthy provides sufficient legal certainty and is consistent with other healthy weight restrictions and policies. For example, it is used in a similar way in the promotions and placement restrictions for less healthy food and drink, which were made law last December.

It is important to provide detail in the Bill on the two-step criteria to determine what is less healthy, in order to ensure that the primary legislation is sufficiently clear. The nutrient profiling model has been used by Ofcom since 2007 to determine what can be advertised around child-specific programming on TV, although outside the statutory framework. The technical guidance of January 2011, which provides the steps to calculate the nutrient profiling model score, is an existing document that has been specifically developed and used to support industry since it was published. Its substance is not changeable at the discretion of the Secretary of State and, as an additional safeguard, the Government have already amended Schedule 17 to include a statutory duty to consult in the event that a change is proposed to the meaning of “the relevant guidance”.

I can assure noble Lords that the current approach would allow healthier products, which may contain fruit, nuts and seeds or be a source of protein, to not be caught by restrictions, while still restricting those which are less healthy overall. However, that will also need to be underpinned by secondary legislation, which the Government will be consulting on shortly, and the points your Lordships have raised will be considered as part of this.

The proposed amendment to permit the advertising of confectionery of less than 200 calories could mean that adverts for chocolate confectionery products could still be permitted on TV before the watershed and online, given the likely difficulty in determining portion sizes in such adverts. This would undermine the policy and send out the wrong message to consumers and producers.

In response to Amendment 244, we do not believe it is necessary to consult on whether alcohol should be included as a “less healthy” product, as these provisions are aimed at reducing the exposure of children to less healthy food and drink advertising. Unlike alcohol, less healthy food and drink products are not age-restricted at the point of purchase. In addition, as noble Lords have noted, there are other measures in place that address the advertising of alcohol.

Turning to Amendments 247, 250A and 253A, I assure noble Lords that brand advertising is out of scope of the restrictions, as these clauses focus on identifiable products. Including an exemption in the Bill for something that is already out of scope would have no legal effect and therefore may cause undue confusion.

I turn to Amendments 248B, 251A and 253C on who will be covered by these proposals. We intend to define food and drink SMEs as businesses with 249 employees or fewer, as outlined in our consultation response. By doing this, the Government want to ensure consistency with other similar definitions, such as for out-of-home calorie labelling. We will consult on the secondary legislation defining food and drink SMEs shortly, but this approach will allow Ministers to act promptly to change the definition of food or drink SMEs in future, should it be necessary.

I turn to platform liability and other questions regarding the watershed hours in Amendments 250ZA, 253ZA, 254A, 255A, 255B, 257B and 253AA. Platform liability is incredibly important. During the 2020 consultation, we considered whether other actors in the online advertising supply chain should have responsibility for breaches alongside advertisers, but concluded that this was not the right place for this broader issue, given the far-reaching impacts for the industry. However, I reassure my noble friend Lady Stowell, the noble Lord, Lord Clement-Jones, and many others that the Government intend to consider platform liability as part of the wider online advertising programme.

On the question of when these restrictions should apply, Ofcom’s research—

[Baroness Stowell of Beeston (Con)]

I am so sorry to interrupt my noble friend, but can she please give us a timescale for that?

[Baroness Penn (Con)]

I believe it is being conducted this year, but I will check that and come back to my noble friend and all other Members of the Committee, because I know there is significant concern on that point.

On the timing of the restrictions on television, Ofcom research suggests that children’s viewing peaks in the hours after school, with the largest number of child viewers concentrated between 6 pm and 9 pm. In this period, half of children’s viewing takes place during adult commercial programming. We do not therefore believe that introducing advertising restrictions only on the weekend is sufficient to meet our policy objectives.

We are committed to ensuring that businesses are supported now and when the regime comes into force. We will, of course, consult on the secondary legislation and guidance, which should give stakeholders more clarity. However, in response to Amendments 245, 255, 256, 257 and 317, we believe that the overall policy direction has been set out effectively and we do not think that there is a need to add the kind of gap between publication of final guidance and implementation, as proposed by my noble friend’s amendment.

In response to Amendments 249A, 252A and 257A, I can assure your Lordships that we will conduct a post-implementation review five years after implementation. This is intended to be based on the variables set out in the impact assessment, published in June 2021. However, the Government believe that further tying down of the criteria at this stage would be counterproductive. We will also use this opportunity to look at any displacement of advertising to other media not covered by the restrictions, such as outdoor advertising.

However, in response to Amendment 244A, there is insufficient evidence at this stage of the influence of further national advertising restrictions in other media on calorie consumption in children, which is why these restrictions focus on TV and online only. We would also advise against adding a sunset clause, as it would pre-empt this evaluative work and could undermine compliance. We have heard quite a bit from noble Lords about the need for certainty on the Government’s approach in this area. I say to my noble friend that a sunset clause on these regulations would undermine that case.

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[Lord Grade of Yarmouth (Con)]

Before my noble friend sits down, can she give the House some sense of what the Government would regard as success as a result of the advertising ban? Is there some target of reduction that they expect to see at the end of five years as a result of this ridiculous ban?

[Baroness Penn (Con)]

I believe that I said that the criteria for measuring the success of this policy have been set out in the impact assessment. I will happily send that to my noble friend. I do not think that it is a finalised list. We have discussed in this Committee the difficulty of assessing success, so we would not want to preclude new research or information that would help us to assess our approach better in future.

My noble friend was right in anticipating that I was about to conclude. This has been a substantial group of amendments—

[Lord Lansley (Con)]

Before my noble friend sits down, can I ask her about the nutrient profiling technical guidance? What is the timetable and process for its review?

[Baroness Penn (Con)]

My noble friend was of course eagle-eared—I am mixing a metaphor—in that I did not address his point on that. I can tell him that, in 2016, the Government commissioned Public Health England to review the UK NPM algorithm that has been in place since 2004, to ensure that it aligns with dietary recommendations from the Scientific Advisory Committee on Nutrition, particularly for free sugars and fibre. I am afraid to say that my next line is that the outcome of that review will be published in due course.

[Lord Clement-Jones (LD)]

I want to follow up on that question. It was in 2018 that the consultation took place; is the Minister aware of that? We are now four years down the track and nothing has come out.

[Baroness Penn (Con)]

The date that I have for the commissioning of the work is 2016, which means that we are even further down the road on that piece of work. I am well aware of the time that has passed since then. I will undertake to see if I can provide any update beyond “in due course”, but I do not want to raise noble Lords’ hopes too far on that.

I hope that I have been able to provide noble Lords across the Chamber with assurances as to our plans and, therefore, that noble Lords will feel able not to press their amendments.

[Baroness Finlay of Llandaff (CB)]

My Lords, we are three hours and 49 amendments on and I am sure that everyone in the House will join me in saying that we have enjoyed hearing from the noble Baroness the Minister now that she is back in Committee with us.

It is perhaps a crumb of comfort to those who have been worried about advertising and the outcomes that Norway’s ban since 2013 has shown that other products moved into the space and there was not a total loss of income. Quebec has had the least rise in childhood obesity in Canada since its ban. I will not comment any more on that other than to say that we have all recognised that obesity is a serious problem that needs to be addressed. The Wild West digital space of the platforms needs to be addressed quite urgently and will be more difficult, but I hope that this will not deter the Government from their action to tackle obesity.

For my amendment, I just remind the House that alcohol adverts are tempting young people into early consumption. It is a highly obesogenic and highly addictive substance, which is why my amendment was there. I am disappointed that the Government are not even considering incorporating it in the list of substances, but I beg leave to withdraw my amendment.

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Moved by

[Baroness Penn]

246: Schedule 17, page 234, line 23, at end insert—
“(1A) OFCOM must ensure that the prohibition provided for by the first standards set by virtue of subsection (1) takes effect from the beginning of 1 January 2023.”Member’s explanatory statement
This amendment ensures that the watershed on television advertising of unhealthy food and drink will not apply until 1 January 2023.

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Moved by

[Baroness Penn]

249: Schedule 17, page 235, line 18, at end insert—
“(4A) The Secretary of State may, before the date specified in subsection (1A), amend that subsection so as to substitute a later date for the date that is for the time being specified there.”Member’s explanatory statement
This amendment allows the Secretary of State to defer beyond 1 January 2023 the date when the watershed on television advertising of unhealthy food and drink begins to apply.

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Moved by

[Baroness Penn]

250: Schedule 17, page 235, line 30, leave out from beginning to “include” in line 31 and insert “From the beginning of 1 January 2023, on-demand programme services must not, between 5.30 am and 9.00 pm,”
Member’s explanatory statement
This amendment ensures that the watershed on advertising of unhealthy food and drink in on-demand programme services will not apply until 1 January 2023.

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Moved by

[Baroness Penn]

252: Schedule 17, page 236, line 16, at end insert—
“(5A) The Secretary of State may, before the date specified in subsection (1), amend that subsection so as to substitute a later date for the date that is for the time being specified there.” Member’s explanatory statement
This amendment allows the Secretary of State to defer beyond 1 January 2023 the date when the watershed on advertising of unhealthy food and drink in on-demand programme services begins to apply.

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Moved by

[Baroness Penn]

253: Schedule 17, page 236, line 32, at beginning insert “From the beginning of 1 January 2023,”
Member’s explanatory statement
This amendment ensures that the prohibition on online advertising of unhealthy food and drink will not apply until 1 January 2023.

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Moved by

[Baroness Penn]

254: Schedule 17, page 237, line 38, at end insert—
“(6A) The Secretary of State may, before the date specified in subsection (1)—(a) amend that subsection so as to substitute a later date for the date that is for the time being specified there, and(b) make corresponding amendments to the references to that date in subsections (10) and (11).”Member’s explanatory statement
This amendment allows the Secretary of State to defer beyond 1 January 2023 the date when the prohibition on online advertising of unhealthy food and drink begins to apply.

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[Baroness Penn (Con)]

My Lords, I am grateful to all the noble Baronesses who have spoken in this group, and in particular to my noble friend Lady Cumberlege for all the work that she has done on patient safety. I have noted their points very carefully and look forward to the further discussion of transparency and scrutiny of healthcare professionals in the debate on the next group where, on the point that the noble Baroness, Lady Thornton, made about payments from pharma and so on, it is my understanding that it will be on industry to declare those nationally.