Health and Care Bill

Lord Stevens of Birmingham Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

[Lord Bethell (Con)]

My Lords, I will speak to Schedule 17 generally and in support of Amendment 244 in the name of the noble Baroness, Lady Finlay. In doing so, I declare my wife’s interest as a board director of Tesco and Diageo.

I will focus my comments on the amendments supported by my noble friends Lord Vaizey and Lord Moylan. In doing so, I seek to address all the amendments they have put forward, which seek to: extend the implementation period for the new restrictions; introduce brand advertising exemptions; and bring in effectiveness reviews and sunset clauses, and all the other clauses that seek to water down the really important measures in the Bill on junk food advertising. I recognise that the noble Baroness, Lady Boycott, has already gone through some of these amendments in detail, so I do not want to go through that again. However, I am aware that my noble friend Lord Vaizey and other noble Lords have brushed off the Government’s obesity strategy as wrong-headed and doomed; indeed, the noble Lord, Lord Clement-Jones, has shared his view that the measures in the Bill are disproportionate.

I want to reflect for a moment on what we are trying to do here. As a country, we have got into a situation where, by every measure, we are seriously overweight. The worst affected are our children. We have heard, both in this debate and many times in this Chamber, that two in five children are overweight. The worst-affected children are the poorest children, who are twice as likely to be overweight. In thinking about the environment our children are being brought up in—this question of environment is absolutely critical—what are our values as a nation if we knowingly create an environment that encourages children to develop addictions to foods that we know will hurt them, adversely affect their moods, hold back their learning, reduce their self-worth and damage their health for years to come?

Through the pandemic, we have seen that now is the time to lean into this ongoing national disaster. The measures in this Bill are necessary because they are an essential condition for an overall change in the direction of travel of childhood obesity prevalence. The challenge is going from an increase in the weight of our children of around 1% per year to a decrease of 4.2% per year. That is an astonishing mission and a massive challenge. No country has ever undertaken such a thing.

However, I am not convinced that we can just hope that our primary schools will do all the heavy lifting to achieve this. Somehow, as a country, we have to change the way in which we run our lives. This will require a change in the environment in which our children learn about, engage with and buy food—and that includes the media they consume. If we fail, for every year that this is not achieved, the rate of change needed in future years will grow, and thousands more children will be exposed to the physical and mental health impacts of obesity.

The noble Lord, Lord Krebs, talked eloquently about how, 20 years ago, the Hastings report had this research nailed. There is now a sense of urgency, which is why these measures are needed. It is why we cannot seek to extend the implementation periods for new restrictions; this will just drag them out indefinitely and undermine the seriousness of the programme. It is why we cannot give brand advertising an exemption that clearly leaves the door wide open for the same old advertising in different ways. It is why we should not commit to effectiveness reviews that will become a rear-guard action to unpick these regulations, nor commit to sunset clauses that will give industry false hope that somehow the Government will just give up on these measures or the problem will go away.

To reach the 2030 target, it is absolutely crucial that the Government continue with these plans to restrict junk food advertising on TV and—as the noble Viscount rightly said—online, and do not waste any more time. It is also crucial that we introduce fiscal measures to speed up reformulation at the same time, making healthy eating more accessible to everyone. It is absolutely clear from our data that any delay in action or the implementation of proposals to address childhood obesity will have a significant impact on the ability of the Government to achieve their ambition. More children will grow ill and live shorter lives.

I hear—loudly and clearly—the concerns of my noble friends Lord Vaizey and Lord Moylan, and the noble Lord, Lord Clement-Jones. I hear their concerns about the science, the research and the public health epidemiology that underpin these measures. I do not agree with their scepticism but I do hear their concerns, so let me pick off a couple of them.

My noble friend Lord Vaizey expressed scepticism about the effectiveness of these measures. He is right that these advertising restrictions will not work on their own. Obesity is a complex issue and no one single policy can solve it. However, small steps matter. It can take as little as 46 extra calories a day for children to gain excess weight, and seeing just one minute of HFSS adverts leads to children eating an extra 14 calories a day on average.

As I said earlier, this question of environment is absolutely critical. I accept that we need population-level structural policies to address the social and economic drivers of obesity, to then address the growing inequalities between the most and the least-deprived children. That is why the levelling-up White Paper earlier this week that tackles housing, education, deprivation and many other aspects of British life was critical to this debate and forms the context in which we should discuss these measures. It is also why my noble friend should not feel that the broadcast and food industries are in some way being uniquely scapegoated. This is a national programme that will touch on many lives.

My noble friends are right to express concerns about the fortune of the broadcast and internet industries, two jewels in Britain’s creative industries and employers that drive local economies. I want to reassure them. I once worked in the media industry and have not forgotten the intense competition for advertising and the existential battle with big tech, but my noble friend Lord Vaizey spoke as if many of these companies would find that all communication by these companies on all their products to all their target markets would somehow be terminated forthwith and that the British public service broadcast industry would be thrown into destitution. That is just not quite right. Cancer Research UK found that ITV, Channel 4, Channel 5 and Sky One derive a small proportion—just 8% of their total ad revenue—from adverts for HFSS foods.

It is true that almost two-thirds of HFSS product adverts aired between 6 and 9 pm fall within the category that UKHSA has identified as the highest contributors of sugar calories in people’s diets, a fact that I found quite alarming, but under a 9 pm watershed broadcasters would have lost only 5% of their total advertising revenue if all HFSS adverts were removed completely, without anything in their place. Noble Lords should know that over three-quarters—79%—of potential revenue loss from removing HFSS adverts could be mitigated against by companies advertising their existing non-HFSS products instead of promoting their HFSS products. Healthy foods can still be advertising.

It is just not right to call these measures appalling and crude or ridiculous and blunt. To change the environment in which our children make decisions about food is critical for this national mission, and to contribute to a campaign to improve the health of children is a commendable aspiration for these government measures.

[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.

[Lord Stevens of Birmingham (CB)]

As the noble Lord will know, the genuine problem that we have in this country is that unfortunately we are a world leader in childhood obesity. It therefore falls to us to take world-leading action to respond to that.

Even classical economic liberals will accept that children are not sovereign consumers. The noble Lord, Lord Vaizey, in his earlier remarks, said that there was no evidence that advertising leads to increased consumption. My noble friend Lord Krebs has comprehensively rebutted that point but, to underline the matter, I say that studies of children’s ventromedial prefrontal cortices—the areas of their brains associated with reward valuation—suggest that watching food commercials systematically alters the psychological and neurobiological mechanisms of children’s food decisions. Even small but sustained reductions in at-risk children’s calorific content provide demonstrable physiological benefit.

By the way, this figure of 1.7 grams or 3 grams, as my noble friend Lord Krebs pointed out, is a mistaken application of epidemiological maths—that is, dividing the assumed totality of calorific reduction against the totality of children on an even basis, when in fact the children who will disproportionately benefit are those who are disproportionately exposed and disproportionately obese.

Systematic evidence reviews conclude that

“screen advertising for unhealthy food results in significant increases in dietary intake among children.”

Therefore, once we have had the denial, the second tactic is to dilute the regulatory effort—to insert loopholes, to neuter regulators, to drive a coach and horses through what is proposed. We have a number of amendments which seek to do that. They pretend, as the noble Baroness, Lady Boycott, pointed out, that advertising to children of a smaller item is not in practice also advertising the identically packaged larger item. They exempt ads for certain bars which by themselves may contain half of a child’s maximum daily recommended sugar intake. They give a green light to brand advertising, even where children perceive the fast food or confectionary brand and its associated unhealthy products as essentially the same. Widespread evidence shows that current narrow restrictions on children’s exposure to harmful junk food ads are routinely breached, and frankly these amendments seek to repeat the trick.

Even more absurdly, Amendments 245A and 250ZA would restrict harmful advertising only on a Saturday and Sunday. The noble Baroness, Lady Boycott, pointed out that those of us who are parents know that our kids are not exposed to screens only on a Saturday or Sunday; it turns out that Monday, Tuesday, Wednesday, Thursday and Friday are also days of pressure for those of us trying to be responsible parents. Or are we asked to believe that rising obesity in pre-school and school-age children does not happen on school days? If so, these amendments imply the discovery of a phenomenon unknown to medical science: weekend-only obesity.

Finally, when denial has been disproved and the dilution tactic has been debunked, the amendments try for delay—for more time to lobby for a weakening of the political will, to live to fight another day. “Lord make us pure, but not yet”; even St Augustine would blush at these amendments. Nor for that matter do government Amendments 249, 252 and 254 have anything to commend them. We have heard this morning a strange contradiction between the acknowledged urgency of the spiralling health crisis affecting our children versus the long and leisurely gap that some still want before further action is taken. These preventive measures were first announced by the Government in 2018. Three years is more than long enough to prepare and adapt. The Government’s goal is to halve childhood obesity by the end of the decade, but we are nowhere near being on track. We had better get on with it because, as the saying goes, children may be only a fifth of our population but they are 100% of our future. In the past, the blocking tactics of deny, dilute and delay have often succeeded—but today, perhaps not, because young people and parents want change, and because today, in this Bill, the Government are showing resolve; so too should we, my Lords.

[Lord Black of Brentwood (Con)]

My Lords, I will speak to Amendment 245, tabled by my noble friend Lord Vaizey, and to others in this group to which I have added my name. I declare my interests as a director of the Advertising Standards Board of Finance and deputy chairman of the Telegraph Media Group, and note my other interests in the register. I am also a vice-chairman of the ITV APPG.

This does not need repeating: I support the Government’s aim to tackle childhood obesity, but I am wholly opposed to their proposals to tackle it through an advertising ban. I believe that even now, at the 11th hour, they should think again, because it is disproportionate and based on scant and frankly implausible evidence. It will damage the creative economy, which is already under such stress, and it will have unintended consequences, like so much legislation that impacts on the media.

Also—and this is a very important point—it sets a hugely dangerous precedent for the Government to interfere with advertising freedoms, which are a fundamental aspect of freedom of expression. This is bad legislation.

As we have heard so often, the reduction in calories will be minimal, but this ban will take £200 million out of the media and creative industries when they can ill afford it and when they are in a life-and-death struggle with the all-powerful platforms. My noble friend Lord Bethell said that it would take out only 8% of revenues. When you are in day-to-day combat with the platforms for advertising revenue, 8% of revenues is a huge amount of money. More than 265 news media outlets have closed over the last 15 years, and many more will follow if the burden of regulation is increased, not cut in the way it should be.

This ban will not impact just broadcasters; it will disproportionately affect news publisher websites, too. This blunderbuss of a ban will reduce freedom of choice for advertisers and harm the ability of news media publishers to monetise content online, which is crucial for their long-term survival. At the same time, astonishingly, it will allow the tech platforms to continue to derive enormous amounts of revenue from HFSS advertising.

Here is the great irony: the platforms have a significant audience of children, because that is where children go to get their news, but they will not be impacted. News publisher websites have only a de minimis child audience but will suffer directly as a result of this policy—and they will do so at a time when the entire industry is under great stress, as countless reports, including the Government’s Cairncross and Furman reviews, the report from our own Communications and Digital Committee and a comprehensive report from the CMA, have demonstrated. In winding up, could my noble friend explain why news publishers are caught but the platforms are not? It is, as somebody famously said, “voodoo economics”.

Even at this late stage, I hope the Government will think again and drop these ill-thought-out restrictions. In case they do not—I am a practitioner of the art of realpolitik and I know this ban may end up going through—as we have heard from a number of noble Lords, we must at least make sure the policy is workable. That is the job of this House and this Committee because, at the moment, the measures are not fit for purpose.

As noble Lords know, during my career I have had one or two encounters with the issue of regulation, and I am clear that, for regulation to work properly, it must have a number of inherent qualities. First, you cannot rush regulation. Stakeholders from those affected need to have their input and they need time to adapt. That is what the amendments in this group, starting with Amendment 245, are all about. This is not just delay for delay’s sake; it is delay because that is what the real world demands. When this Bill becomes law, that is just a starting point. As my noble friend Lord Vaizey said, you have to designate a regulator, then the regulator has to implement it and there has to be public consultation on code changes. That long process could easily take the rest of the year and possibly longer.

Once that is all complete, in the real world, advertisers, agencies and media owners will need time to assess how the system is going to work in practice. This is a very complicated part of the creative economy, as the noble Lord, Lord Clement-Jones, said. You cannot just flick a switch and expect everything to change at once. It will take at least a year for all those involved in the advertising supply chain to adapt, review processes, set new legal procedures in place and so on—leaving aside the impact on the creative aspects of their work. That is why I genuinely believe that this Bill must not come into force until one year after the final publication of the rules and guidance from the appointed regulator.

A judicious approach to implementing the rules is one characteristic of sensible regulation. Another is certainty, which is what Amendment 247 and others are about. The Bill quite rightly focuses on ads where an identifiable HFSS product is shown, with brand advertising and sponsorship exempt. I applaud that, but the Bill is not crystal clear on the point. Within the creative industries, there is a huge amount of uncertainty, which is the enemy of effective regulation, about what is and is not permitted. I believe the terms of the exemption should be set out in the Bill, not least so that, if this or a future Government wish to revisit the matter, they must come back to this House to set out why they are doing it and to seek our consent. Given the potential harm this legislation could cause and the precedent it sets, that must be right.

The final aspect of sound regulation must be the measurement of its effectiveness. Regulation that does not work—and I am afraid that I am sure this will not—should not remain on the statute book simply for the sake of it. If it is found wanting—or, worse, damaging—it should be repealed. This is too important an issue to leave to chance. We should therefore know now what metrics the Government will use to measure the success of these restrictions, the definitions they will employ and how data will be collected. Will they measure the impact on the creative economy as well as on obesity? We should know. If those metrics are not met, the restrictions should fall at the end of the review period.

In the absence of dropping this legislation—I notice some reports that its demise might be part of Operation Red Meat, which we are hearing so much about, and let us hope so—our job is to ameliorate its worst aspects and ensure that it is sound and workable. These amendments do that, and I hope they will find widespread support across the Committee.