Communications Act 2003 (Restrictions on the Advertising of Less Healthy Food) (Effective Date) (Amendment) Regulations 2022

Lord Markham Excerpts

Monday 27th February 2023 Lords Chamber

[Baroness Merron (Lab)]

My Lords, the Children’s Minister recently admitted that the nation had a problem with childhood obesity that should not be ignored. I am sure that noble Lords who have spoken today, and I am grateful to them, will share that view, not least because children with obesity are five times more likely to become adults with obesity, increasing the risk of developing conditions including type 2 diabetes, cancer and heart and liver disease. This is an extremely serious and pressing matter, as the Minister has been reminded yet again.

Two in five children in England are above healthy weight when they leave primary school and we now see the fastest increase in childhood obesity on record, as my noble friend Lord Brooke highlighted in his remarks. But it gets worse. Children starting school in the most deprived areas are three times as likely to be severely obese as those in the wealthiest, while NHS data shows that almost half of boys in England’s poorest areas are overweight or obese when they leave primary school. Last year, there were 3,400 severely obese children aged four or five in the most deprived parts of the country, as compared with 630 in the richest. So will the Minister give some indication as to what account is being taken of this great disparity between those who have more and those who have less in the Levelling-up and Regeneration Bill currently being considered in your Lordships’ House?

As we have heard today, it is absolutely right that we make informed choices about what we eat and drink, but choice can only really be choice if there is no distortion, and if those who are making the decisions have all the information they need and are able to interpret it. As the noble Baroness, Lady Bull, said, we actually need an integrated health approach to tackle the complexities of achieving a healthy weight. So the question for the Minister that has run throughout this debate is: how will the statutory instrument support this integrated health approach to tackle the complexities we know we have?

In the Government’s original analysis, they suggested a watershed on advertising, saying that introducing restrictions to prevent adverts for products high in salt, fat and sugar being shown before 9 pm could lead to 20,000 fewer obese children. I took it that this was, as others have said in the debate today, about shifting the environment, shifting the power of influences, in order to manage the challenges that we all face in supporting our wish to secure good health. So, will the Minister tell your Lordships’ House what will be the change in opportunity to tackle children’s obesity because of this regulation and the change it brings about? I refer in particular to page 33 of the Secondary Legislation Scrutiny Committee report. The noble Baroness, Lady Walmsley, referred to the figures. The report states:

“Analysis conducted to inform the Government’s Impact Assessment of the advertising restrictions found that under current restrictions children were exposed to 2.9 billion less healthy food and drink TV impacts and 11 billion less healthy food and drink impressions online in 2019”.


The committee observes that the effect of the delays means that, presumably, this level of advertising will continue and asks for an explanation as to why this is acceptable given the harms stated. Perhaps the Minister could refer to an answer on this point. The committee also asks for an explanation as to how the Government anticipate that they will still achieve the target of halving childhood obesity by 2030 if various elements of the strategy are delayed. Again, perhaps the Minister can tell your Lordships’ House his view on this.

Of course, there is a difficult balance to strike when seeking to improve public health and also when working with broadcast and online and the advertising industries. The Government have produced a regulation that has been drawn to the attention of the Secondary Legislation Scrutiny Committee once again, and this clearly does not assist the striking of that balance. It is not acceptable that the Explanatory Memorandum is described as “poor”, and that it fails to evaluate the effects on public health and the NHS from this delay. Nor is it acceptable that it fails to explain the use of a different definition from previous legislation. This refers to the unexplained shift from “high-fat, sugar and salt” to “less healthy foods”. The committee rightly asks whether the Government’s intended scope of products that they want to regulations to cover have been changed. Perhaps the Minister could respond on this point.

The SLSC also says that it

“provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.”

It also says that, worryingly:

“The views of the NHS are not addressed or explained.”


This, I believe, is quite remarkable and suggests a breath-taking lack of engagement with those who should be engaged with. Once again, poor policy-making and poor administration have come together to leave your Lordships’ House unable to properly scrutinise what the Government are doing and why, even though it is the job of your Lordships’ House to do this. Perhaps the Minister could address these points of concern.

The Minister will recall that I have raised many times before the point about his department’s approach to legislation and the criticism that it has attracted. He kindly gave an undertaking that he would look into this with a view of doing better in future. Can the Minister could update the House of progress in this regard? Finally, I hope that the Government will not be diverted from measures that will have an impact on the health and weight of the nation.

[Lord Markham (Con)]

My Lords, I congratulate the noble Lord, Lord Allan—despite his wish to invite people to kick our balls—and the noble Baroness, Lady Merron, for securing the debate to discuss these regulations. I also thank the Secondary Legislation Scrutiny Committee for its report on this, and I thank all noble Lords for their constructive discussion on how to tackle the pressing challenge on obesity. I thank the noble Baroness, Lady Bull, in particular, for her thoughtful contribution showing the complexities of the subject with regard to the impact on eating disorders, as well as obesity.

I like to think that we are all agreed on the scale and the gravity of the issue at hand. Data from the latest child measurement programme, as mentioned by others, shows that 38% of children leaving primary school were either overweight or living with obesity. One in four were living with obesity. This, as we know, is fuelled by the regular overconsumption of food and drink that is high in calories, sugar and fat—or HFSS food and drink for short. As the noble Baroness, Lady Merron, mentioned, we know that being overweight or living with obesity at a young age increases the risk of being overweight as an adult which, in turn, significantly increases the risk of diabetes, coronary heart disease, musculoskeletal issues and certain cancers. This impacts on both the individual’s well-being and wider society. As we all know, it comes at a very high cost. Not only does it cost the NHS £6.5 billion a year in the latest estimates—there is an economic cost estimated to be as much as £58 billion. For all those reasons, this Government are committed to tackling obesity: it is the morally and fiscally responsible thing to do.