Health and Care Bill

Mary Kelly Foy Excerpts

Report stage
Monday 22nd November 2021 Commons Chamber

[Mary Kelly Foy (City of Durham) (Lab)]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 3—Cigarette pack inserts—

“The Secretary of State may by regulations require tobacco manufacturers to display a health information message on a leaflet inserted in cigarette packaging.”

This new clause would give powers to the Secretary of State to require manufacturers to insert leaflets containing health information and information about smoking cessation services inside cigarette packaging.

New clause 4—Packaging and labelling of nicotine products—

“The Secretary of State may by regulations make provision about the retail packaging and labelling of electronic cigarettes and other novel nicotine products including requirements for health warnings and prohibition of branding elements attractive to children.”

This new clause would give powers to the Secretary of State to prohibit branding on e-cigarette packaging which is appealing to children.

New clause 5—Sale and distribution of nicotine products to children under the age of 18 years—

“(1) The Secretary of State may by regulations prohibit the free distribution of nicotine products to those aged under 18 years, and prohibit the sale of all nicotine products to those under 18.

(2) Regulations under subsection (1) must include an exception for medicines or medical devices indicated for the treatment of persons aged under 18.”

This new clause would give powers to the Secretary of State to prohibit the free distribution or sale of any consumer nicotine product to anyone under 18, while allowing the sale or distribution of nicotine replacement therapy licensed for use by under 18s.

New clause 6—Flavoured tobacco products—

“The Secretary of State may by regulations remove the limitation of the prohibition of flavours in cigarettes or tobacco products to ‘characterising’ flavours, and extend the flavour prohibition to all tobacco products as well as smoking accessories including filter papers, filters and other products designed to flavour tobacco products.”

This new clause would give powers to the Secretary of State to prohibit any flavouring in any tobacco product or smoking accessory.

New clause 8—Tobacco supplies: statutory schemes (supplementary)—

“(1) The Secretary of State may make any provision the Secretary of State considers necessary or expedient for the purpose of enabling or facilitating—

(a) the introduction of a statutory scheme under section [Tobacco supplies: Statutory schemes], or

(b) the determination of the provision to be made in a proposed statutory scheme.

(2) The provision may, in particular, require any person to whom such a scheme may apply to—

(a) record and keep information,

(b) provide information to the Secretary of State in electronic form.

(3) The Secretary of State must—

(a) store electronically the information which is submitted in accordance with subsection (2);

(b) ensure that information submitted in accordance with this provision is made publicly available on a website, taking the need to protect trade secrets duly into account.

(4) Where the Secretary of State is preparing to make or vary a statutory scheme, the Secretary of State may make any provision the Secretary of State considers necessary or expedient for transitional or transitory purposes which could be made by such a scheme.”

This new clause and NC7, NC9 and NC10 would enable the Secretary of State for Health and Social Care to regulate prices and profits of tobacco manufacturers and importers.

New clause 9—Tobacco supplies: enforcement—

“(1) Regulations may provide for a person who contravenes any provision of regulations or directions under section [Tobacco supplies: statutory schemes] to be liable to pay a penalty to the Secretary of State.

(2) The penalty may be—

(a) a single penalty not exceeding £5 million,

(b) a daily penalty not exceeding £500,000 for every day on which the contravention occurs or continues.

(3) Regulations may provide for any amount required to be paid to the Secretary of State by virtue of section [Tobacco supplies: statutory schemes] (4) or (6)(b) to be increased by an amount not exceeding 50 per cent.

(4) Regulations may provide for any amount payable to the Secretary of State by virtue of provision made under section [Tobacco supplies: statutory schemes] (3), (4), (5) or (6)(b) (including such an amount as increased under subsection (3)) to carry interest at a rate specified or referred to in the regulations.

(5) Provision may be made by regulations for conferring on manufacturers and importers a right of appeal against enforcement decisions taken in respect of them in pursuance of [Tobacco supplies: statutory schemes], [Tobacco supplies: statutory schemes (supplementary)] and this section.

(6) The provision which may be made by virtue of subsection (5) includes any provision which may be made by model provisions with respect to appeals under section 6 of the Deregulation and Contracting Out Act 1994 (c. 40), reading—

(a) the references in subsections (4) and (5) of that section to enforcement action as references to action taken to implement an enforcement decision,

(b) in subsection (5) of that section, the references to interested persons as references to any persons and the reference to any decision to take enforcement action as a reference to any enforcement decision.

(7) In subsections (5) and (6), ‘enforcement decision’ means a decision of the Secretary of State or any other person to—

(a) require a specific manufacturer or importer to provide information to him,

(b) limit, in respect of any specific manufacturer or importer, any price or profit,

(c) refuse to give approval to a price increase made by a specific manufacturer or importer,

(d) require a specific manufacturer or importer to pay any amount (including an amount by way of penalty) to the Secretary of State,

and in this subsection ‘specific’ means specified in the decision.

(8) A requirement or prohibition, or a limit, under section [Tobacco supplies: statutory schemes], may only be enforced under this section and may not be relied on in any proceedings other than proceedings under this section.

(9) Subsection (8) does not apply to any action by the Secretary of State to recover as a debt any amount required to be paid to the Secretary of State under section [Tobacco supplies: statutory schemes] or this section.

(10) The Secretary of State may by order increase (or further increase) either of the sums mentioned in subsection (2).”

This new clause and NC7, NC8 and NC10 would enable the Secretary of State for Health and Social Care to regulate prices and profits of tobacco manufacturers and importers.

New clause 10—Tobacco supplies: controls: (supplementary)—

“(1) Any power conferred on the Secretary of State by section [Tobacco supplies: statutory schemes] and [Tobacco supplies: statutory schemes (supplementary)] may be exercised by—

(a) making regulations, or

(b) giving directions to a specific manufacturer or importer.

(2) Regulations under subsection (1)(a) may confer power for the Secretary of State to give directions to a specific manufacturer or importer; and in this subsection ‘specific’ means specified in the direction concerned.

(3) In this section and section [Tobacco supplies: statutory schemes] and [Tobacco supplies: statutory schemes (supplementary)] and [Tobacco supplies: enforcement]—

‘tobacco product’ means a product that can be consumed and consists, even partly, of tobacco;

‘manufacturer’ means any person who manufactures tobacco products;

‘importer’ means any person who imports tobacco products into the UK with a view to the product being supplied for consumption in the United Kingdom or through the travel retail sector, and contravention of a provision includes a failure to comply with it.”

This new clause and NC7, NC8 and NC9 would enable the Secretary of State for Health and Social Care to regulate prices and profits of tobacco manufacturers and importers.

New clause 11—Age of sale of tobacco—

“The Secretary of State must consult on raising the age of sale for tobacco from 18 to 21 within three months of the passage of this Act.”

This new clause would require the Secretary of State to consult on raising the age of sale for tobacco products to 21.

New clause 14—Implementation of Restrictions on advertising of less healthy food and drink online—

“The regulator shall put in place a mechanism for the delivery of the requirements under Part 2 of Schedule 16 which shall require that advertisers—

(a) apply media targeting filters, based on robust audience measurement data, to ensure the avoidance of children’s media or editorial content of particular appeal to children;

(b) use audience targeting tools and, where available, proprietary audience or other first-party data to further exclude children; and

(c) use campaign evaluation tools to assess audience impacts and use any learning to continually improve future targeting approaches.”

This new clause would require the regulator to put in place a three-step “filtering” process for restricting online advertising by managing the targeting of an online advertising campaign for foods that are high in fat, salt or sugar, as developed by the Committee of Advertising Practice of the Advertising Standards Authority.

New clause 15—Alcohol product labelling—

“The Secretary of State must by regulations make provision to ensure alcoholic drinks, as defined by the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or in future versions of that guidance, display—

(a) the Chief Medical Officers’ low risk drinking guidelines,

(b) a warning that is intended to inform the public of the danger of alcohol consumption,

(c) a warning that is intended to inform the public of the danger of alcohol consumption when pregnant,

(d) a warning that is intended to inform the public of the direct link between alcohol and cancer, and

(e) a full list of ingredients and nutritional information.”

This new clause requires the Secretary of State to introduce secondary legislation on alcohol product labelling.

New clause 16—Annual report on alcohol treatment services: assessment of outcomes—

“(1) The Secretary of State must lay before each House of Parliament at the start of each financial year a report on—

(a) the ways in which alcohol treatment providers have been supported in tackling excess mortality, alcohol related hospital admissions, and the burden of disease resulting from alcohol consumption, and

(b) the number of people identified as requiring support who are receiving treatment.

(2) Alongside the publication of the report, the Secretary of State must publish an assessment of the impact of the level of funding for alcohol treatment providers on their ability to deliver a high-quality service that enables patient choice.”

This new clause would require the Secretary of State for Health and Social Care to make an annual statement on how the funding received by alcohol treatment providers has supported their work to improve treatment and reduce harm.

New clause 17—Minimum unit price for alcohol—

“(1) The Secretary of State must by regulations make provision to ensure alcoholic drinks, as defined by the Department for Health and Social Care’s Low Alcohol Descriptors Guidance published in 2018, or in later versions of that document, are liable to a minimum unit price.

(2) The regulations must provide for the minimum unit price to be calculated by applying the formula M x S x V, where—

(a) M is the minimum unit price, expressed in pounds sterling,

(b) S is the percentage strength of the alcohol, expressed as a cardinal number, and

(c) V is the volume of the alcohol, expressed in litres.”

This new clause requires the Secretary of State to introduce secondary legislation that applies a minimum unit price to alcohol.

Amendment 14, in clause 138, page 118, line 5, after “drink)”, insert

“and section [Minimum unit price for alcohol]”.

This amendment would bring NC17 into force at the same time as section 129 and Schedule 16 (advertising of less healthy food and drink).

Amendment 3, in schedule 16, page 222, line 8, at end insert—

“(3) A brand may continue to advertise, or provide sponsorship, if the advertisement or sponsorship does not include an identifiable less healthy food and drink product.”.

This amendment makes an explicit exemption from the advertising restrictions on television programme services between 5.30 am and 9.00 pm for brand advertising and sponsorship, where there is no identifiable less healthy food and drink product.

Government amendments 31 and 32.

Amendment 11, in schedule 16, page 222, line 26, at end insert—

“(da) a drink product is ‘less healthy’ if it is an alcoholic product in accordance with the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or future versions of that guidance;”.

This amendment ensures that alcohol is considered a “less healthy” product and therefore liable to the watershed proposed for TV programme services.

Amendment 111, in schedule 16, page 222, line 28, leave out from “meaning” to end of line 30 and insert

“given in Section 465 of the Companies Act 2006 (Companies qualifying as medium-sized: general)”.

This amendment, and Amendments 112 and 113, aims to define companies to whom the advertising restrictions imposed by this schedule would apply as medium-sized companies within the meaning given by section 465 of the Companies Act 2006.

Government amendment 33.

Amendment 6, in schedule 16, page 222, line 38, after “unless”, insert

“a public consultation has been carried out on the proposed change to the relevant guidance, and”.

This amendment requires a public consultation to take place before any change can be made to the Nutrient Profiling Technical Guidance under which a food or drink product may be identified as “less healthy” and its advertising restricted on television programme services between 5.30 am and 9.00 pm.

Amendment 4, in schedule 16, page 223, line 4, at end insert—

“(3) A brand may continue to advertise, and provide sponsorship as a brand, if the advertisement or sponsorship does not include an identifiable less healthy food and drink product.”.

This amendment makes explicit exemptions from the advertising restrictions on on-demand programme services for brand advertising and sponsorship, where there is no identifiable less healthy food and drink product.

Government amendments 34 and 35.

Amendment 12, in schedule 16, page 223, line 24, at end insert—

“(da) a drink product is “less healthy” if it is an alcoholic product in accordance with the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or future versions of that guidance;”.

This amendment ensures that alcohol is considered a “less healthy” product and therefore liable to the watershed proposed for TV programme services.

Amendment 112, in schedule 16, page 223, line 26, leave out from “meaning” to end of line 27 and insert

“given in Section 465 of the Companies Act 2006 (Companies qualifying as medium-sized: general)”.

See explanatory statement to Amendment 111.

Government amendment 36.

Amendment 7, in schedule 16, page 223, line 36, after “unless”, insert

“a public consultation has been carried out on the proposed change to the relevant guidance, and”.

This amendment requires a public consultation to take place before any change can be made to the Nutrient Profiling Technical Guidance under which a food or drink product may be identified as “less healthy” and its advertising restricted on on-demand programme services.

Amendment 106, in schedule 16, page 224, line 8, leave out “must not pay for” and insert

“must not market, sell or arrange”.

This series of connected probing amendments is intended to create parity in treatment of television and online advertising. The platform carrying the advertising, rather than those paying for advertising, would be responsible for the placing of advertisements. The wording to denote a platform mirrors that used by Ofcom in its recent regulation of Video Sharing Platforms consultation.

Amendment 110, in schedule 16, page 224, line 16, at end insert—

“(aa) in relation to advertisements placed on distributor or retailer websites which are associated with the sale of food or drink”.

This amendment aims to ensure paid-for branded HFSS product advertisements are treated as equivalent to HFSS own-brand products on retailer-owned spaces.

Government amendment 37.

Amendment 5, in schedule 16, page 224, line 26, at end insert—

“(4) A brand may continue to advertise, and provide sponsorship as a brand, if the advertisement does not include an identifiable less healthy food and drink product.”.

This amendment makes an explicit exemption from the restrictions on online advertising for brand advertising and sponsorship, where there is no identifiable less healthy food and drink product.

Government amendment 38.

Amendment 13, in schedule 16, page 225, line 10, at end insert—

“(fa) a drink product is “less healthy” if it is an alcoholic product in accordance with the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or future versions of that guidance;”.

This amendment ensures that alcohol is considered a “less healthy” product and therefore liable to the online ban.

Amendment 113, in schedule 16, page 225, line 12, leave out from “meaning” to end of line 14 and insert

“given in Section 465 of the Companies Act 2006 (Companies qualifying as medium-sized: general)”.

See explanatory statement to Amendment 111.

Government amendment 39.

Amendment 8, in schedule 16, page 225, line 24, after “unless”, insert

“a public consultation has been carried out on the proposed change to the relevant guidance, and”.

This amendment requires a public consultation to take place before any change can be made to the Nutrient Profiling Technical Guidance under which a food or drink product may be identified as “less healthy” and its advertising restricted online.

Amendment 107, in schedule 16, page 225, line 28, leave out “made a payment for” and insert “marketed, sold or arranged”.

See explanatory statement for Amendment 106.

Amendment 108, in schedule 16, page 225, line 30, leave out “made” and insert “received”.

See explanatory statement for Amendment 106.

Amendment 109, in schedule 16, page 227, line 3, leave out from “with” to end of line 4 and insert

“the person marketing, selling or arranging advertisements published on the internet”.

See explanatory statement for Amendment 106.

--- Later in debate ---

[Mary Kelly Foy]

Before I address the amendments tabled in my name, I want to briefly voice my support for amendments 11 to 13 and new clauses 15 to 17, in the name of my hon. Friend the Member for Liverpool, Walton (Dan Carden), which call for improved regulation of alcohol marketing and labelling, for minimum unit pricing in England and for better assessment of treatment outcomes. Sadly, my hon. Friend cannot be here today, as he is with his family and his father Mike, who is receiving palliative care after many months of treatment for lung cancer. I know how important these issues are to my hon. Friend; I express my love and solidarity, and that of the whole House, at this difficult time for him and his loved ones.

Smoking is one of the biggest causes of ill health. It has a devastating impact on our population: it killed approximately the same number of people in 2019 as covid 19 in 2020, and one in every two smokers will die from smoking-related illnesses. The Government and the Opposition both support a smoke-free 2030, but without meaningful action, that ambition will be missed by seven years—or by double that number of years, in the case of the poorest in society.

[Catherine West (Hornsey and Wood Green) (Lab)]

Does my hon. Friend agree that Professor Marmot’s work on social and health inequalities shows that 0.5% of GDP should be spent on health inequalities such as those she describes?

[Mary Kelly Foy]

I could not agree more. Michael Marmot is one of the most important health inequalities experts around.

To make matters worse, smoking rates among young adults have surged to 25% above pre-lockdown rates. However, despite the damage that missing the 2030 target would cause, there is nothing in the Bill that would help to achieve the Government’s ambition to make smoking obsolete. That is why the all-party parliamentary group on smoking and health, of which I am the vice-chair, is fighting to get the 2030 ambition back on track. I was delighted to hear the Minister say in Committee that the Government would review the APPG’s proposals as they developed their own tobacco control plan, but that plan, which was due this year and expected in July, is now likely to be delayed beyond the end of the year. If the Government are serious about creating a smoke-free England by 2030, they will implement the APPG’s recommendations as soon as possible, and the Bill provides the ideal opportunity for them to do so.

Let me quickly summarise new clause 2. It gives the Secretary of State powers to add health warnings to cigarettes and cigarette papers. The Government are reviewing the proposal, but have said that more research is needed. Health warnings such as “Smoking Kills” have been shown to be effective on billboards and tobacco packs, so why on earth would they not be effective on individual cigarettes? At least eight peer-reviewed papers have been published in the last five years showing that the measures are effective. Similarly, new clause 3 would give the Secretary of State powers to require health information messages to be inserted in cigarette packs. That has been a legal requirement in Canada since 2000, and there is substantial evidence to show that it works there. Research carried out in the UK supports its use here as well.

[Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)]

The hon. Lady will, of course, understand that one of our key aims must be to stop younger generations taking up smoking in the first place. Does she believe that her proposals—which I fully support—will help to achieve that key strategic aim?

[Mary Kelly Foy]

Most of my new clauses are indeed intended to prevent young people from starting to smoke in the first place.

[Hywel Williams (Arfon) (PC)]

The hon. Lady has said that these measures apply to England, but they will of course have an effect throughout the United Kingdom—and rightly so—contributing to our aim to bring about a smoke-free Wales as well.

[Mary Kelly Foy]

Again, I could not agree more.

In Committee, the Minister said that the Department could already legislate under the Children and Families Act 2014 to require the insertion of such information messages. In that case, why do the Government not commit themselves to doing so now?

New clauses 4 to 6 address loopholes in current legislation. Now that those loopholes have been identified to the Government, they should be fixed without delay, and today we have the opportunity to do so. New clause 4 would give the Secretary of State powers to remove child-friendly branding elements from nicotine products. There are e-liquids on the market that are given sweet names, such as “gummy bears”, and that have branding that is in garish colours and features cartoon characters. Surely more evidence is not necessary to prove that such branding risks attracting children.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

Is this not one of the most important of the hon. Lady’s new clauses? As people age and die—events often driven by cigarettes—or perhaps manage to give up, the tobacco companies must recruit the young, with the indefensible aim of persuading them to start smoking.

[Mary Kelly Foy]

I entirely agree. Tobacco is the only legal product that kills one in two of those who use it, and most people start smoking at a young age. These new clauses are therefore extremely important, because they would tackle that problem.

[Jim Shannon (Strangford) (DUP)]

The figures back up what the hon. Lady says. Two thirds of smokers in the UK start smoking under the age of 18, and over a third—39%—start under the age of 16. What she proposes will address that issue in a substantial way. We need legislation in place, and there needs to be punishment as well; that is the only way forward.

[Mary Kelly Foy]

I thank the hon. Gentleman, and I will address that issue.

New clause 5 would close another loophole in the law, which allows the free distribution of e-cigarettes and other consumer nicotine products to children under 18. The Government rejected the proposal, saying that there was no evidence of a serious problem, but the Minister sympathised with the argument for preventive action. Prevention is precisely our intention. Fixing this loophole is an appropriate application of the precautionary principle.

New clause 6 would remove the limitations on the ban on flavourings in tobacco products. That ban currently applies only to characterising flavours. The new clause would extend the flavour ban to all tobacco products, as well as to smoking accessories, including filter papers, filters and other products designed to favour tobacco products. In Committee, the Minister claimed it was unclear how a ban could be enforced in practice, as it would include a ban on flavours that did not give a noticeable flavour to the product. I suggest that he seek advice from Canada on this point, where a complete ban on flavours is already in place and has been highly effective.

The new clauses on the tobacco levy would give powers to the Secretary of State to implement a “polluter pays” levy on tobacco manufacturers. The Minister dismissed this in Committee as a matter of taxation for the Treasury to consider. However, we are not proposing additional taxation. Our new clauses are modelled on the American user fee and on the pharmaceutical pricing scheme in the UK.

[Janet Daby (Lewisham East) (Lab)]

Does my hon. Friend agree that prevention is much better than cure, because so many adult smokers have a terrible experience when trying to give up, and it comes at a huge cost to their health?

[Mary Kelly Foy]

I thank my hon. Friend for that intervention. A theme throughout these new clauses is that most people start smoking when they are children or when they are young, and most of them say that they wish they had never started. The new clauses would tackle young people’s access to tobacco-related products.

[Paula Barker (Liverpool, Wavertree) (Lab)]

It is often vulnerable children, and often those in care, who start smoking early, so does my hon. Friend agree that it is incredible that the Government have so far said that they will not support these new clauses?

[Mary Kelly Foy]

Yes, it is absolutely incredible. We have heard that a tobacco plan might be on its way, but every day that goes by without our putting these recommendations in place is another day on which someone dies of tobacco harm, and on which more young people become addicted to nicotine products.

Discussions with the Treasury on the “polluter pays” levy would not be necessary. The Food and Drug Administration administers the user fee in the United States, and the Department of Health and Social Care could and should administer such a scheme here.

New clause 11 has been revised in the light of the Government’s response to our proposal in the Committee, in which they cited the need to

“review the evidence base of increasing the age of sale to 21 in more detail”.––[Official Report, Health and Care Public Bill Committee, 28 October 2021; c. 816.]

They also stated the need for a public consultation. I agree that a consultation is the appropriate next step, so the new clause has been revised to require the Government to consult on raising the age of sale for tobacco from 18 to 21 within three months of the passage of this legislation.

To sum up, my new clauses address loopholes in the law. They would take incremental and obvious next steps to strengthen tobacco regulation still further, and they would provide the funding that is desperately needed to deliver the Government’s smoke-free 2030 ambition—funding that the spending review failed to deliver. When I was chair of the Gateshead tobacco control alliance, I saw the damage that smoking can do. It shortens life expectancy, increases the pressure on our health services, drives down productivity and drains wealth from our poorest communities—and for one in every two smokers, it will kill them. Eventually, the Government will have to accept that the measures proposed are necessary. The only question is how long they will wait, and how many lives will be ruined by tobacco in the meantime. I urge the Government to accept these new clauses in full.

--- Later in debate ---

[Edward Argar]

I am afraid I will not. I suspect that point will be pertinent to the debate on the first group of amendments tomorrow.

First, we intend to merge Health Education England with NHS England and NHS Improvement, putting education and training of our health workforce at the forefront of the NHS. By bringing this vital function inside the NHS, we can plan more effectively for the long term and have clear accountability for delivery.

Secondly, we also intend to take forward the recommendations of the Wade-Gery report, which included merging NHSX and NHS Digital with NHS England and NHS Improvement, building on the huge progress made on digital transformation during the pandemic and bringing together the digital leadership of the NHS in one place. I take this opportunity to pay tribute to all our colleagues at Health Education England, NHS Digital and NHSX for their exceptional work. These changes build on that contribution and allow us to drive forward further integration and changes that will put the NHS on a firmer footing.

I hope I have reassured hon. Members of the Government’s commitment to improving public health. I urge those who have tabled amendments to consider not pressing them to a Division.

[Mary Kelly Foy]

I have listened carefully to the debate, and I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 4

Packaging and labelling of nicotine products

“The Secretary of State may by regulations make provision about the retail packaging and labelling of electronic cigarettes and other novel nicotine products including requirements for health warnings and prohibition of branding elements attractive to children.”—(Mary Kelly Foy.)

This new clause would give powers to the Secretary of State to prohibit branding on e-cigarette packaging which is appealing to children.

Brought up, and read the First time.

Question put, That the clause be read a Second time.