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Alcohol Labelling Bill [HL]

Volume 701: debated on Thursday 1 May 2008

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Faulkner of Worcester) in the Chair.]

Clause 1 [Warnings on alcoholic beverages]:

1: Clause 1, page 1, line 2, after “ensure” insert “so far as is practicable”

The noble Baroness said: I should like first to thank the noble Lord, Lord Mitchell, for being kind enough to rearrange the Committee stage of the Bill so that I could be present to speak to my amendments following an absence of several weeks after an accident. I am most grateful.

Before tackling the amendment I should declare various interests. Noble Lords should know that until September 2006 I was the chief executive of the Portman Group, an organisation funded by major alcoholic drinks producers to promote sensible drinking by consumers and responsible marketing by producers. I was also a member of the Alcohol Education and Research Council. I am a paid non-executive adviser to a global wines and spirits company, Brown-Forman, and I have undertaken various projects for other drinks producers in my capacity as an independent consultant. In my earlier career in the voluntary sector I worked and campaigned for several organisations concerned with maternity and infant welfare issues.

I also acknowledge the valuable assistance that I have received from the Wine and Spirit Trade Association and the British Beer and Pub Association in preparing the amendments to which I wish to speak. The WSTA represents about 90 per cent of wine sales by volume in the UK market, 80 per cent of imported spirits and all of the major multiple alcohol retailers. The BBPA represents 98 per cent of all beer sold in the UK market. The amendments in my name are also supported by the Scotch Whisky Association, the Gin and Vodka Association and the National Association of Cider Makers. I make that roll call not just to thank those organisations but to demonstrate the willingness of the industry to act effectively on the issue covered by the Bill and to demonstrate their willingness to make it workable in practice.

Legislation making it mandatory for labels to carry pregnancy advice is somewhat premature, if I may use that expression, at a time when the voluntary labelling agreement negotiated between government and industry is getting off the ground and attracting significant positive compliance. Nevertheless, my main concern has been to work as constructively as possible with the noble Lord, Lord Mitchell, to make sure that if and when his Bill becomes law, it will be as workable and non-contentious as possible in practice. I appreciate that his overriding concern is to see pregnancy advice on labels and that how it gets there is of secondary importance. I am therefore very glad that he has added his name to most of my amendments, which are designed only to acknowledge and honour the voluntary scheme and to keep any statutory provisions as a failsafe mechanism or back-stop.

Amendment No. 1 proposes to insert,

“so far as is practicable”,

after “ensure” in line 2. It is a shame that we have to start with one of the amendments to which the noble Lord, Lord Mitchell, has not added his name. I wish to make it clear from the outset that my intention is absolutely not to provide a device that lets companies off the hook.

As I said, in general I believe that the Bill’s measures should kick in wherever the voluntary scheme is not complied with. However, some types of package, container or label formats would make it very difficult to comply with the Bill’s requirements. Miniatures are the obvious example. There is a requirement in the United States for pregnancy advice on labels, but I have seen writing on some bottles so miniscule that I question the value of such a format to the consumer. Surely it is a tenet of all UK and EU labelling requirements that the information concerned should be meaningful to the consumer and proportionate to the goal. We certainly should not go for a measure that includes miniatures just because we know that they do that in the United States. After all, there are some very strange rules in the US relating to miniatures that I do not think we would go for here at all. I understand that in Washington DC, for example, it is illegal to sell miniatures singly. They have to be sold in six-packs because it is thought that selling them singly somehow encourages misuse. I should have thought that the opposite would apply, but that is a bit of an aside.

The noble Lord, Lord Mitchell, introduced the Bill some time ago and has since changed the wording of the text of the advice to bring it into line with the wording now advocated by the Department of Health and which is in the voluntary agreement. I still hope that I may be able to change his mind and that he will accept this amendment, which would bring the Bill into line with other aspects of, and assumptions behind, the voluntary agreement.

There is also the question of disproportion, which I touched on at Second Reading. There are certain packages and label formats where disproportionate cost, even to the point of threatening commercial viability, would be an issue for certain companies if this provision became a mandatory requirement for every single label on every single brand. That would apply, in particular, to small businesses, especially in the wine sector, where thousands of brands are tested each year in the UK market using hundreds of UK agent companies. We are talking about a very small fraction of the market. If this had been government legislation, it would have needed a regulatory impact assessment. However, just because it is a Private Member’s Bill, I do not think we should forget that there are regulatory impact issues for small businesses and, indeed, for consumer choice. As I said, hundreds of companies would be faced with the choice either to comply at cost or simply not to supply the UK market at all. I would not be concerned about these small businesses and their predicament—even if it were a cost predicament—if I thought that, by making the requirement mandatory for 100 per cent of labels on 100 per cent of brands, we would be doing women a favour, but the shortfall that would occur as a result of the kind of exemptions that I have in mind would make no difference at all to women’s awareness of the advice. We do not need 100 per cent of labels to carry this message. Labels are only part of the information stream bringing this vital message to women. The voluntary agreement between industry and government acknowledges that the labelling regime will play,

“a part in supporting a wider government-led campaign”.

The word “practicable” could also deal with another situation that I have in mind to make the requirement more practical—that is, to acknowledge that it is not reasonable to expect all brands to comply all at the same time with a single enactment date. In practice, I think that it would be reasonable to allow the gradual phasing-in of a labelling requirement for some niche brands with a very small market share but a long shelf life. Many of these brands will be owned by large global companies and so cost is obviously not ultimately a barrier, but the logistics of label production mean that it might be practical to deal with these brands later rather than sooner—for example, within two years rather than two months. Again, the voluntary agreement envisages that those considerations should be taken into account. It says that the Government understand that these labelling changes will happen as part of normal industry cycles for making changes to labels.

I did a small amount of research on the way in which the word “practicable” has been interpreted by the courts. I was relieved to see that it seems to have been interpreted in a fairly tight way. It is certainly regarded as much stricter than the phrase “reasonably practicable”. It is regarded as meaning feasible rather than “if you feel like doing it”. I stress that this is not meant to be a device to let anyone off the hook. If I am unable to persuade the Minister to accept the phrase in my amendment, I would ask him at the very least to consider bringing back an amendment on Report or at Third Reading with a new clause or schedule for the specific exclusion of things, such as miniatures, which it seems reasonable to exclude from the requirements of the Bill. I beg to move.

I am very glad to be able to support my noble friend Lady Coussins. She has moved the amendment with great skill and most comprehensively, for which I am grateful. I have had no chance to discuss any of these amendments with her before today's debate, but quite independently I arrived at the same conclusions concerning miniature bottles.

Miniatures contain either five centilitres or, occasionally, only three centilitres—usually when the bottle contains cognac. It is almost impossible to get any meaningful warning on a bottle that size. If there were lettering a millimetre high it would swamp the rest of the bottle. I do not think anyone would willingly buy a miniature, not least because they are terribly bad value. If you multiply a miniature by 15 to get the price of a bottle, it would be enormously expensive. Mostly, you get given them free on British Airways flights, no doubt to compensate for your delayed luggage. British Airways are very good at that: I have a collection of empty miniature bottles which are useful for various things.

This is an unanswerable point. I suppose that there may be other containers which are difficult to label, but the miniature bottle is certainly one. I urge the noble Lord, Lord Mitchell, to think very carefully about it.

I was slightly horrified when I learnt that I had to deal with this Bill, not having been involved with it previously. However, when I looked at it closely, I came to some conclusions, which are mine and not necessarily the policy of my party. I shall oppose all the amendments before us today because I believe that the Bill's proposals are right, so I shall speak only once. I have heard the noble Baroness, Lady Coussins’s, explanation of this amendment, with the insertion of the words “so far as is practicable”, but I still find it very difficult to understand. Those words must be open to all sorts of interpretations, so I cannot accept this amendment and nor can I accept any of the others.

We, in this Committee, all know the dire consequences of drinking to excess but many young women do not. Alcohol-related deaths have almost doubled since 1991 and continue to rise. The costs to the NHS are huge. Alcohol-related injuries and disease cost around £1.7 billion a year and about 353,000 people were taken to hospital in England in 2006 as a direct result of alcohol abuse. Clearly and unambiguously, labelling is now necessary, especially for pregnant women or those hoping to conceive. The Government’s labelling of every cigarette packet has certainly got the message across about smoking being dangerous to health. Now that message must be followed through to the labelling of alcoholic drinks. A toned-down warning, something that says, “We hope that you abide by this”, is absolutely no use whatever, and these amendments suggest that. I am sorry, but I will not be supporting them, and I support the Bill in its entirety.

The noble Baroness talks about alcohol abuse. Does she not concede that the greatest alcohol abuse occurs in clubs and pubs, but there will be no need to have labels put on the glasses served to the mainly young people concerned? That is the problem. It has little to do with whether there are labels on the bottle or cans.

I in large part echo the words of the noble Baroness, Lady Harris. Reading through the amendments, I have particularly concerns about the first. I am rather disappointed that, in moving the amendment, there was no suggestion that the label on the bottle should be clearly displayed at the point of sale, when somebody is purchasing it. That creates a loophole within the Bill. People will perhaps then argue through various bits of case law that their bottle or label is too special, precious or different in shape to warrant carrying the relevant warning.

My other concern is that there is no requirement for the warning to be legible. We all know and have seen times when, for example, the sell-by or the shelf date of a product is stamped in such an illegible way that we need two pairs of glasses and a strong light to see which year it was, let alone which day or month. I am concerned that exactly the same method could be used to print pale grey on a light background, or a shade of green on green or whatever, so that the label would not be clearly legible. In that spirit—and I use the word advisedly—I have grave concerns about the amendment.

Briefly, I warmly welcome this Bill in Committee, the co-operation and work undertaken between many of the interests involved, and the work of my noble friends and the noble Lord, Lord Mitchell, in bringing this forward. I do not intend to speak any further in Committee, but am grateful for the work that has been done.

I share the disappointment expressed about the amendments. It should be as strong as possible. After all, we were recently reminded by a report from Alcohol Concern that 1 million children have an alcohol-dependent parent. Of course, we are particularly concerned about the foetus at this point. This is an opportunity to break some women and mothers from their use of alcohol when their child is at an early stage, so that the children do not experience their parent with that dependency.

I want to quote briefly from a report from the mental health charity Rethink. Referring to what we have learnt from advertising on cigarette packets, it states:

“Large warnings on cigarette packets in the UK have had a dramatic effect. 12 per cent of quit attempts in 2004 were prompted by packet warnings. Packet warnings are the second largest source of callers to the NHS Stop Smoking Helpline. As the warnings have grown bigger, the number of people who said that the warnings had stopped them from having a cigarette doubled, and the number of people saying they have led them to consider quitting has gone from 25 per cent to 40 per cent”.

These warnings are clearly important. I know that we are talking about the size, and the small warnings. I look forward to listening to the Minister’s response on this. In general and on principle, however, I welcome the Bill and the work done on it. I regret that it is not stronger, but recognise that compromises have to be made.

Would my noble friend not agree that you cannot go into a pub or club and buy one or two individual cigarettes, having no sight of the packet? If you want a cigarette, you have to buy or have access to a packet and therefore you will see the warning. The analogy with alcohol is imperfect because you can drink an awful lot in a year without buying a bottle or can of beer, or whatever.

The noble Lord, Lord Monson, made a valid point that many young people who overindulge do so in a social setting where they would not be buying the entire bottle, and therefore would not see the label. But the point of the Bill is to create a culture whereby people are educated about the damage that alcohol can do to them. Irrespective of whether on a particular Saturday night they had a couple of drinks too many and did themselves harm, they would be more aware in general of the damage of alcohol through the labelling process.

Secondly, we know from recent research figures that since the smoking ban, the consumption of alcohol in social domestic settings has increased considerably. That is where people would be privy to the warnings on bottles and so on.

Perhaps I may say to my noble friend Lord Mitchell that the first amendment always takes time, so don’t worry. It is of course up to him to decide what he wishes to do with this amendment, but I thought it might be useful if I placed the Government’s position on the record. Thereafter, unless asked specifically, I shall not take part in the debate. I shall sit here and smile.

I congratulate my noble friend on his perseverance and his success in bringing his Private Member’s Bill to Committee stage. I am very pleased to see the noble Baroness, Lady Coussins, again in her place and on her feet.

As we have said on both occasions that my noble friend has sought to introduce his Bill, the Government support fully the ethos and motivation behind it, and are determined to tackle alcohol-related harm in whatever form it may take. As Members of the Committee will recall, last year we reached a voluntary agreement on labelling with the alcohol industry which will provide people with information about how much they are drinking and what it means for their own health. We also expect that the industry should include information on what drinking alcohol during pregnancy means for the health of the child. On Amendment No. 1, the Government’s agreement with industry contains an exemption similar to the proposal put forward by the noble Baroness, Lady Coussins, because it is aimed at providing flexibility to a minority of small producers in cases where the logistics of production and distribution would have disproportionate costs.

My noble friend’s excellent Bill proposes a warning on drinking alcohol during pregnancy. We commend this entirely. We have been clear with the industry that it should include pregnancy advice on labels. Our strong preference is for industry to use government wording, but labels may also use the French pregnancy advice logo. However, we hope that the voluntary agreement will accomplish even more than my noble friend’s Bill, incorporating additional information on units and relating these to daily recommended alcohol consumption guidelines.

My noble friend’s Bill rightly proposes that, should it be enacted, it will come into force by no later than 1 January 2010. We agree that swift action is needed. Our voluntary agreement with industry is clear that we expect to see the majority of alcohol product labels carrying the health information by the end of 2008, which is soon and well within the timeframe that my noble friend proposes.

It is fair to give industry, which has shown willing thus far, the opportunity to improve labelling without new regulation. And we have given the industry a reasonable period of time within which to meet the terms of the agreement announced last May. We shall be monitoring the industry to ensure that this has taken place, and have appointed CCFRA Technology Limited to carry out an initial collection and analysis of data from a sample of alcoholic drinks labels throughout the UK. A second sample will be taken towards the end of 2008.

We will be looking at the presentation. My noble friend’s original Bill contained some detailed provisions, but there are also amendments tabled that would lighten its requirements.

I remind noble Lords of the Government’s position. While our voluntary agreement is not so prescriptive on placement, size and other things, we expect the industry to produce labels that consumers can easily read and take in. Visibility, legibility and intelligibility will be the key measures of effectiveness. It is clear that we must await the results of the monitoring, but I sincerely hope that the outcome is as positive as the Government and my noble friend would like. However, if it becomes evident that progress on implementing the agreement is insufficient and that the industry has not delivered, Ministers have made clear that they are willing to legislate following public consultation.

The Bill has given the Government the opportunity to consider what further action might look like. We are satisfied that primary legislation to require the industry to comply with the voluntary agreement would not be required since the Secretary of State for Health already possesses adequate regulation-making powers under the Food Safety Act 1990. That means that, should it prove necessary, and I sincerely hope it will not, the Government could make labelling mandatory through secondary legislation.

In summary, we support my noble friend’s aims, but we do not agree that his Bill will provide the public with information as swiftly or as effectively as we expect our voluntary agreement with the industry should do. Under the agreement, we expect positive changes to the majority of labels by the end of 2008. They should provide unambiguous, clearly presented information about units and guidelines on sensible drinking. We expect that labels should include information on drinking and pregnancy.

My noble friend’s Bill also has implications for the devolved Administrations. This is particularly true for Scotland where food labelling is a devolved matter and a Sewel motion would be required. Noble Lords must also be satisfied that details such as enforcement are properly provided for in each part of the United Kingdom. I am pleased to say that our voluntary agreement is UK-wide and does not present these difficulties.

Our preferred approach, for now, is a voluntary approach, but we are serious about labelling and have powers to extend regulation. If we are not satisfied that the industry has delivered, we will not hesitate to move to a mandatory scheme.

The Minister has given me a lot to think about. I will consider very seriously what she said. I am delighted that the noble Baroness, Lady Coussins, is in her place. It was the right decision to postpone the Committee stage of the Bill. She has been very helpful. She was in hospital, and we are glad to see her on her feet. I am pleased that she is making a contribution to this. In the beginning, I was not absolutely convinced that she was on the side of the angels, but we have spent quite a bit of time trying to find a practical solution to these issues, and she brings a wealth of knowledge from her experience in the drinks industry. There are two areas where we do not agree, and I am certainly less strident than the noble Baroness, Lady Harris, on this issue. It will be interesting to see how the Committee proceeds.

Since Second Reading, there have been a number of developments that are well worth mentioning. First, the National Institute for Clinical Excellence, which had in some ways equivocated on this issue, came up with a strong position regarding alcohol and pregnancy. That was very good for all of us who have supported this position. Secondly, the BMA has been consistent in its support for what we are trying to do and supports compulsory labelling.

However, the most interesting thing that has happened relates to Diageo, which is a major drinks manufacturing company. It manufactures Guinness and lots of spirits, and is a leader in the industry. Its position on this is quite clear: it does not like a voluntary agreement and does not want one. It wants legislation. I went to see Diageo, and it issued a press release. I shall read what the managing director of Diageo Great Britain wrote; it is worth listening to:

“We believe that this is crucial if we are to avoid confusion among women. If a pregnant woman walks into a shop and sees two bottles of wine, one with a pregnancy message on it and another without, we want to avoid her thinking that one is better for her than the other. A voluntary labelling agreement would carry this risk”.

It continues:

“We have been waiting for NICE to confirm its position. We believe that all alcohol producers should include the new guidance on their products. Now is the time for Government to make it a mandatory requirement. We should remember that information on labels is only one way to communicate a pregnancy message. Labelling will only be effective if part of a wider package of responsible drinking communication including programmes, interventions, websites and other resources”.

When it comes to it—when the independent survey to which my noble friend referred takes place—Diageo may well not have complied, because I do not think that it wants to. It is absolute: it wants in black and white what it should and should not do.

I listened to what noble Lords said about the amendment. I have thought a lot about the issue of miniatures. Clearly, you cannot have a label bigger than the bottle. That is not practicable. The American example is good. You may not be able to read it, you may need good eyesight to be able to read something on a small bottle, but it is there. It is part of a method of thinking; it is part of where we stand on the issue. I see no reason for any exception, even for miniatures.

In any other area, you do not get an exception just because you are a small business. It is absolute: if you have to do certain things, you have to. I cannot see the issue. Just as the rules on tobacco were a 100 per cent requirement that had to be complied with, exactly the same should be true of alcohol, without exclusions.

There are always issues about phasing in but, as my noble friend said, the Government will look seriously at what is the situation at the end of 2008. It is now May, and there are eight months ago, which is not long. By then, we will know exactly where we stand.

On the issue of pubs and clubs, which the noble Lord, Lord Monson, mentioned, I was in a bar in New York a few weeks ago with some friends. There in the bar—not on the glasses but with the bottles—was a clear message that stated that drinking when pregnant can affect the unborn child. There are various ways in which the message can be put across. Even in the club and pub culture, we can do that, as we did in the case of tobacco.

I want to keep the provision as it is; I think that it is correct; I do not think that practicability should be an issue. That is where I stand.

Is the noble Lord aware that the Diageo commitment to mandatory labelling for pregnancy does not extend to miniatures? It has said that it would be happy to do it only on containers above that size. Because the noble Lord is so delighted with Diageo’s position, which I can understand, I wonder if that alone might persuade him to think twice about a specific exemption for miniatures. I shall not go to the wall on any of the other aspects, but that seems to me a logical thing to do.

Diageo’s exports of miniatures of Johnnie Walker Black Label to the United States have labels on them. I see no reason why that should not be the case here.

2: Clause 1, page 1, line 2, leave out from “carries” to second “the” in line 3

The noble Baroness said: The amendment would remove the obligation to put the pregnancy advice on the brand label or the most visible surface. Amendment No. 29 is consequential on that. Amendment No. 28 concerns a related issue, which I will deal with at the same time. Amendment No. 6, in the name of the noble Lord, Lord Monson, to which I am sure he will speak, would do the same thing in relation to the pictogram or logo. I support that; I am sorry that I was not quick enough off the mark to add my name to the amendment.

Under the clause, the advice in the text would have to be put on the front label of the bottle. That is what “brand label” is understood to mean. I suggest that this would be overrestrictive and possibly counterproductive. The assumption in the voluntary labelling scheme is that producers have flexibility, as we heard from the Minister, over where the information and advice go. The phrase “the most visible surface” in any case is arguably subjective. What is it in the case of a can, a soft tube or a foil pouch, all of which are containers of alcoholic drinks that are currently on the market? Producers need the flexibility to incorporate this pregnancy advice in the most practical way, subject of course to legibility criteria, which we will come to later.

Another point that is worth making is that there is no case for separating the different elements of the sensible drinking message, which will be the case if the amendment is not accepted. The voluntary agreement deals with the five elements of the sensible drinking message, which go together en bloc on whichever place is the most suitable on the label. There is no case for separating out one aspect of the sensible drinking message. Placing them all together would have much more impact.

Insisting on the front label creates a rather unfair, and certainly unscientific, parallel between alcohol and tobacco. The voluntary agreement, as I said, includes the pregnancy advice as part of the overall sensible drinking message. There is no sensible smoking message. It may well have been necessary—I am sure that it was—to have strong legislation in the face of the intransigence of the tobacco industry to change, but this is patently not the case with the alcohol industry, which is willing to engage in a partnership with the Government to try to achieve a culture change. In this way, it is absolutely different from the tobacco industry.

Amendment No. 28, which applies to Clause 14 and is on a related point, would insert “primary” after “sealed” on containers. This is simply a pragmatic measure that would ensure that the advice appeared on the main consumer unit—in other words, the bottle, can, pouch or tube—and not on any outer or additional packaging such as the cardboard wrapper or the box of a multipack. It would be unreasonable to expect it to be incorporated on both, partly because of cost but mainly because it would be of little or no use to the consumer if it appeared on packaging other than the primary packaging. I beg to move.

The noble Lord, Lord Mitchell, has gone a considerable way—although not quite far enough—towards meeting the concerns of those who have misgivings about the Bill. We thank him for that. I also thank him for tacitly accepting my recommendation that drinks containing less than 0.5 per cent alcohol should be exempt. I tabled an amendment to that effect when the previous Bill was in this House. It lapsed because the Bill proceeded no further, but I am glad that he has picked up on it.

I shall focus on my Amendment No. 6, to which I was glad to hear that the noble Baroness, Lady Coussins, lends her strong support. Most of the amendments of the noble Lord, Lord Mitchell, would convert the Bill into an enabling Bill, leaving this or a future Government to decide on precise details such as the size of the lettering, the colour of the labels and so on and so forth.

However, an anomalous requirement in Clause 1(2) remains, perhaps inadvertently. It stipulates that a future Government must insist on the warning appearing on the,

“brand label, or on the most visible surface”.

A future Government could require the lettering to be six inches high and printed in fluorescent ink, or half a millimetre high and printed in pale grey. They would have no choice over the siting of such advice. That these words should remain in the subsection would be inconsistent with Amendment No. 29, to which the noble Lord, Lord Mitchell, has put his name, which deletes exactly the same wording from Clause 14. That reinforces my supposition that his failure to put his name to the deletion of these words was inadvertent.

3: Clause 1, page 1, line 3, leave out “warning” and insert “advice”

The noble Baroness said: Amendment No. 3 and those identical to it deal with replacing the word “warning” with the word “advice”. Again, the parallel with smoking is an issue. For tobacco products, the word “warning” is justified. The messages on packets of cigarettes, such as “Smoking kills” or “Smoking causes serious damage to your health”, are warnings. But in the case of alcohol, this Bill is seeking the promotion not of a warning but of advice. It cannot be a warning, partly because we do not know enough for it to be as bold as with smoking. Private Members’ Bills should of course be evidence-based even if they are not obliged to come up with a regulatory impact assessment.

In June 2007, the British Medical Association said:

“Determining the incidence of FASD is complicated by a lack of reliable and consistent data collection, and the difficulty in diagnosing the range of disorders. Consequently, the incidence of FASD in the UK and internationally is not accurately known. The relationship between maternal alcohol consumption and the development of the range of disorders is not fully understood”.

However, we know enough to understand that there is some kind of relationship to worry about, which is why the current Department of Health guidance is framed as it is. It states:

“As a general rule pregnant women or women trying to conceive should avoid drinking alcohol. If they do choose to drink, to protect the baby they should not drink more than one to two units of alcohol once or twice a week and should not get drunk”.

For labelling purposes, this is abbreviated to:

“Avoid alcohol if pregnant or trying to conceive”.

The second part of that advice is extremely important. It is not just about the dangers of damaging the foetus, but also about excessive alcohol consumption having an adverse impact on fecundability or the chances of conceiving in the first place. I believe that the Department of Health knows from recent qualitative research that this aspect of its pregnancy advice is less well known and less well understood by the target audience, so it is particularly important to include. I am very supportive of the text proposed in this Bill, apart from the words “GOVERNMENT WARNING”.

We also know from research over several years that people’s responses to so-called health warnings are not positive and can even be counterproductive. It is much more sensible to position this in terms of advice. I propose to delete the words “GOVERNMENT WARNING” from the beginning of the prescribed text because we must start from the consumer and what we know about how they would respond to public health messages. Having what is called a warning would be bad enough, but I am afraid that something calling itself a government warning is doubly bad for the chances of its being taken seriously. There is simply no need for it; let us concentrate on advice. In any case, all labels will carry the Drinkaware website address, which has detailed information about alcohol and pregnancy. I beg to move.

It is hard to add anything to the excellent argument made by my noble friend Lady Coussins. Before we leave Clause 1, I want just to refer to something that I do not think has been mentioned, although I was not able to be here for the Second Reading debate—it was held on a Friday, which as noble Lords know is not the easiest day to be in the House.

The noble Lord, Lord Mitchell, will correct me if I am wrong, but I do not think that any mention of pictograms was made in his earlier Bill, which had to be withdrawn. It is an interesting idea and in many ways a pictogram may be better than a written warning. However, while one can visualise easily a pictogram of a pregnant woman, one of a woman trying to conceive is rather more interesting. All sorts of images come to mind, some of which might fall foul of the censorship lobby. Has any thought been given to this? Perhaps there is an American example that could be copied. It may sound frivolous, but it is an interesting point mainly because, as the noble Lord, Lord Mitchell, told us on the last occasion, it is when a woman is trying to conceive or has just done so that the foetus is in the most danger.

I shall deal first with the questions raised by the noble Baroness, Lady Coussins. I agree that “advice” is a better word than “warning”. Having thought about it and discussed it, I think that we are giving advice rather than issuing warnings. I feel quite comfortable with the changes and I accept the point that a government warning is for most people a red rag to a bull. It is good that the word will be removed.

To answer the point raised by the noble Lord, Lord Monson, I should tell him that in France a very effective pictogram is used. It shows the outline of a woman who is clearly pregnant and holding a glass of champagne, as they would in France, surrounded by a clear circle with a cross through it. It makes the point that, whether you are pregnant or thinking about becoming pregnant, alcohol should be avoided. I do not think that any more graphic an example is necessary.

On Question, amendment agreed to.

4: Clause 1, page 1, line 4, leave out “GOVERNMENT WARNING:”

5: Clause 1, page 1, line 6, leave out “warning” and insert “advice”

On Question, amendments agreed to.

6: Clause 1, page 1, line 8, leave out from “carries” to “a” in line 9

The noble Lord said: I have already spoken to this amendment, but the noble Lord, Lord Mitchell, chose not to respond to it when replying to Amendment No. 2. However, it is an important amendment because the wording here is anomalous and does not chime well with Amendment No. 29, which deletes precisely the same words in Clause 14. I wonder whether he might give his view on whether he mistakenly left these words in and would be prepared to remove them, if not at this stage, at the next one. I beg to move.

I am not quite sure how to answer the point, but I think that there is an inconsistency and I accept the point made by the noble Lord, Lord Monson.

On Question, amendment agreed to.

7: Clause 1, page 1, line 9, leave out “warning”

8: Clause 1, page 1, line 10, leave out “warning” and insert “advice”

On Question, amendments agreed to.

9: Clause 1, page 1, line 12, at end insert—

“(4) No advice as required by subsections (1) and (2) shall be required on any container if the producer of that container is in compliance with the voluntary labelling agreement between the alcoholic drinks industry and the Department of Health as expressed in the Memorandum of Understanding dated 24th May 2007.”

The noble Baroness said: This additional subsection would prevent the most responsible producer companies in the industry being penalised for their leadership by having to go to the trouble and expense of changing their labels yet again, in line with the Bill’s requirements, when they have already complied with the voluntary scheme which is nearly but not quite the same. The option of the wording or the logo is the same apart from the words “Government Warning”. There is flexibility within the voluntary scheme to put the advice on the back label as part of a block of text which also includes the key aspects of the sensible drinking message; namely, the daily unit benchmarks for men and women, the unit content for the particular container, the Drinkaware website address and a responsibility message.

The memorandum of understanding setting out the voluntary scheme deals with pregnancy advice as an important integrated aspect of the sensible drinking message and there is no good reason to separate it out, as the Bill requires. It would be a crying shame for the Bill to undermine the voluntary agreement which has been reached following detailed negotiations between the Government and the industry. It would risk sending out a negative message to the industry about how worth while it may or may not be in the future to work in partnership with the Government and, indeed, with other stakeholders in this way.

As we heard from the Minister, the Government intend to review progress on implementation of the scheme towards the end of 2008 and they hope that the majority of product labels will be suitably amended by then. Compliance levels, or commitments to introducing the new production cycles required to achieve compliance, are already respectably high across the industry; I referred to some figures in the Second Reading debate which I shall not repeat here. I am glad that the noble Lord, Lord Mitchell, by adding his name to the amendment, seems happy to accept that it would be fair and just to expect the provisions of his Bill to apply only to those who have not complied already with the voluntary scheme. I beg to move.

I accept what the noble Baroness, Lady Coussins, says on this. The way the wind is blowing is clear from what my noble friend the Minister said. We already have a memorandum of understanding. If that is not complied with, it is clear that the Government will come down like a ton of hot bricks—or at least I hope they will. People in the industry will read this debate and be well aware of what is behind it all. I am happy to go along with the amendment and to lend my name to it.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Size of warnings]:

10: Clause 2, page 1, line 14, leave out “warning” and insert “advice”

11: Clause 2, page 1, line 20, leave out “warning” and insert “advice”

12: Clause 2, page 2, line 2, leave out “warning” and insert “advice”

13: Clause 2, page 2, line 6, leave out “warning” and insert “advice”

On Question, amendments agreed to.

On Question, Whether Clause 2 shall stand part of the Bill?

Is it in order for me to speak at the same time on whether Clauses 3 and 4 should stand part of the Bill? They are all grouped together and the arguments interrelate.

It might assist the Committee if the noble Baroness did so, although I shall call the amendments as they appear in the individual clauses.

Thank you. It would be sensible to lose Clauses 2, 3 and 4, and it would not damage or reduce the overall impact of the Bill to do so. As they stand, the clauses are over-restrictive, inflexible and not helpful.

Clause 2 is superfluous given that the food labelling regulations, which also cover alcoholic drinks, already prescribe for clarity and legibility. The relevant parts of the Food Labelling Regulations 1996 state that any information on labels,

“shall be easy to understand, clearly legible and indelible and, when a food”—

or, in this case, a drink—

“is sold to the ultimate consumer, the said particulars shall be marked in a conspicuous place in such a way as to be easily visible … Such particulars shall not in any way be hidden, obscured or interrupted by any other written or pictorial matter”.

I cannot see any reason to go any further than that, in the interests of consistency—which, after all, is one of the five principles of better regulation, an agenda enthusiastically endorsed by the Government. I shall read a couple of sentences from the guidance on the consistency principle produced by the former Better Regulation Commission, on which body I used to sit:

“Regulators should be consistent with each other, and work together in a joined-up way … New regulations should take account of other existing or proposed regulations”.

It is really not in producers’ interests to put consumer information on labels that is illegible. Retailers would reject it, and so would consumers. The value and importance of reputational risk should not be underestimated.

Many of the same arguments apply to Clause 3, where the over-prescriptiveness could end up being counterproductive, partly because of the design of labels—if the label were black and/or red, the impact of the requirement here could be completely lost—but partly because if pregnancy advice is being included as part of the wider sensible drinking message, as in the voluntary agreement, the design and positioning of the package as a whole needs to be addressed by the producer companies. It is too restrictive and illogical to compel them to observe particular requirements for one aspect only out of the five-point plan.

Industry needs flexibility to research and introduce improved logos or pictograms as well. We have been talking about the French logo and heard a description of it, but producers need the freedom to investigate consumer insights so that they could possibly offer improved variations on that in future. I am aware of consumer research recently done in Japan that showed that consumers on the whole assumed that that particular logo meant that alcoholic drinks had contraceptive properties, and it would be a bit of a disaster if that happened here. We cannot assume that logos will be set in stone or that the prescriptive way in which the clause is currently framed is the best way to do it.

There is a short and simple reason for Clause 4 not to stand part: it is not necessary. It is already a legal requirement under food safety legislation, which covers alcoholic drinks, that manageable product recalls should be facilitated. The Food (Lot Marking) Regulations 1996 require containers to be marked in order to identify the batch to which the container belongs. Many of those markings are actually minute codes, providing precise information on the time of packaging and the line number on which the product was packaged. I simply cannot see what additional reasons relating to alcohol and pregnancy would require anything further, or for the existing law to be restated.

Once again, the noble Baroness, Lady Coussins, has made her case so well that there is no need for me to embellish it. We are pushing against an open door, in that the noble Lord, Lord Mitchell, has been kind enough to accept the deletion of these clauses. I must express some peripheral regret at the disappearance of Clause 2, which demonstrates—if demonstration were needed—the way in which imperial and metric measurements can coexist in perfect harmony in a potential Act of Parliament. There is no need for heavy-handed bureaucracy or the heavy hand of the law to outlaw one form of measurement. I suppose I should declare an interest as a patron of the British Weights and Measures Association, as was the late Gwyneth Dunwoody, whom we shall all miss.

I am always in favour of simplifying things and getting rid of bureaucracy. On the size of the print, however, I have studied quite a few wine bottles, and I have noted that when the warning is about 1 millimetre high, it is very difficult to read. As the noble Baroness, Lady Coussins, said, it also depends on the colour of the label. Black print on a red background is extremely difficult to read.

I wonder whether the noble Lord, Lord McColl, has understood that it will be up to the Government of the day to decide on the size of the lettering and the colouring. It is not in the Bill, but it has been turned into an enabling Bill. I think that that answers his concerns on that point.

Clause 2, as amended, negatived.

Clause 3 [Appearance of warnings]:

14: Clause 3, page 2, line 10, leave out “warning” and insert “advice”

15: Clause 3, page 2, line 11, leave out “warning” and insert “advice”

16: Clause 3, page 2, line 12, leave out “warning” and insert “advice”

17: Clause 3, page 2, line 17, leave out from “type” to “; and” in line 18

18: Clause 3, page 2, line 20, leave out “warning” and insert “advice”

19: Clause 3, page 2, line 27, leave out “warning” and insert “advice”

20: Clause 3, page 2, line 29, leave out “warning” and insert “advice”

On Question, amendments agreed to.

Clause 3, as amended, negatived.

Clause 4 negatived.

Clause 5 [Product description]:

21: Clause 5, page 3, line 7, leave out “warning” and insert “advice”

On Question, amendment agreed to.

On Question, Whether Clause 5, as amended, shall stand part of the Bill?

I see the point of Clause 5, but if somebody buys a can of beer at an alcoholic strength of 3 per cent, it is half as dangerous as a can of a rival beer which has 6 per cent alcohol. It seems rather draconian to say that this should not be pointed out. I suppose that the purveyor of the weaker beer should not say, “This is much safer for pregnant women than my rivals”. I suppose it would be acceptable in that case. The stronger the alcoholic beverage, the more dangerous it is.

Clause 5, as amended, agreed to.

Clauses 6 and 7 agreed to.

Clause 8 [Enforcement]:

22: Clause 8, page 3, line 29, leave out paragraphs (a) to (c) and insert “a local authority”

The noble Baroness said: The purpose of this amendment is to ensure that we do not leave any enforcement loopholes. The best way of doing that is to go for simplicity. It may seem at first sight that to delete every paragraph and replace them just with the words “local authority” is a little imprecise, but I have proposed this catch-all wording because of advice that I have received from LACORS, the local authority co-ordinating body for regulatory services. Taking the remit of the food labelling regulations, which also cover the labelling of alcoholic drinks, LACORS states that the enforcement authority would be,

“a combination of TSOs in County Councils and Unitary Authorities in England and Wales; EHOs in London Boroughs, Metropolitan Authorities in England and in Scotland and Northern Ireland. In other words, enforcement by ‘Local Authorities’ would cover all eventualities”.

So, for simplicity’s sake, the experts suggest that “local authorities” would catch everybody and not expose us to the risk of possibly leaving somebody out. I beg to move.

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clauses 9 and 10 agreed to.

Clause 11 [Penalties]:

I have to tell the Committee that if Amendment No. 23 is agreed to, I cannot call Amendments Nos. 24 and 25 by reason of pre-emption.

23: Clause 11, page 6, line 27, leave out paragraphs (a) and (b) and insert “to a fine not exceeding level 5 on the standard scale”

The noble Baroness said: I propose through this amendment to downgrade the potential penalties for breaches of the labelling requirements under the Bill. I do so for reasons of consistency and proportionality—two of the better regulation principles. I have already read out a bit of the advice on the principle of consistency; on proportionality, the advice is as follows:

“Policy solutions must be proportionate to the perceived problem or risk and justify the compliance costs imposed—don’t use a sledgehammer to crack a nut”.

The first comparison that I would make is, again, with the Food Labelling Regulations 1996, under which any person found guilty of an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale, which is currently up to £5,000. The kind of offences that we are talking about under the food labelling regulations would be misleading nutritional information, selling food after the use-by date or not marking or labelling the product in compliance with the regulations. We are looking at a comparable type of message or advice in the Bill. No term of imprisonment is mentioned in the food labelling regulations and no reference is made to conviction on indictment.

There is another comparison, which I suspect the noble Lord, Lord Mitchell, would rather make—the penalty under the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002, under which an offence would attract a penalty harsher than the one that I propose in that it specifies on summary conviction a term of imprisonment not exceeding three months or a fine not exceeding level 5—but please note the either/or. So even here there is no additional mention of a penalty on conviction on indictment of up to two years’ imprisonment, as is currently in this Bill. The penalty is also clearly either three months or the fine, whereas in the Bill it could be both—although I see that the noble Lord intends to try to change that himself. Would he consider going further still and support my amendment, taking the view that the parallel with the food labelling regulations and not the tobacco regulations is the fairer and more consistent approach?

As I argued earlier, we are not in a tobacco situation here: we are talking about advice, not a warning. Smoking kills, whereas alcohol in moderation can be beneficial to some groups in the population. Even in the very specific and special circumstance of pregnancy, it is important to keep things in a proper perspective. I would hate us to fall into the trap of sending out disproportionately alarmist messages and thereby cause problems, not alleviate them, as happened in the USA and Canada in the 1980s, for example, when completely unfounded misinformation about foetal alcohol syndrome reportedly led to unprecedented distress, anxiety and even requests for abortion on the part of healthy women who had been light drinkers, but were scared by the way in which the media and others had distorted research findings that were applicable only to women who were clearly problem drinkers and consuming very high levels of alcohol.

We are not dealing with a potential offence that should be capable of putting someone behind bars for two years or at all. A fine at level 5, which is the most severe level, is adequate. Anything more than that could be counterproductive, as it could be seen as so disproportionate that convictions would be unlikely. That would, in turn, defeat the whole object of creating an offence. I beg to move.

Once again, the noble Baroness has put the case extremely well and I cannot really add to it. The key word is “proportionate”. For the reasons that she mentioned and the comparison that she has drawn, this suggestion would be disproportionate. There is also a practical aspect. As I said at Third Reading of the Criminal Justice and Immigration Bill, our prisons are full to bursting. Unfortunately, the Government are creating more offences for which people can be sent to prison, but this is crazy for practical reasons let alone moral ones. I would have thought that a fine—possibly an unlimited fine—and not imprisonment is the right penalty for such an offence.

This is another clause on which we disagree. On the fears that women might have in this country, given the amount of media publicity on foetal alcohol syndrome and the dangers of drinking when pregnant or thinking of becoming pregnant, I think that most people have begun to get the message by now. I am not sure that that is particular.

I have a real problem with this amendment. I cannot see that there is any difference between a label on a packet of cigarettes and a label on a bottle of alcohol. A label is a label. There would be a legal requirement and if somebody chooses not to comply, they should face the same penalty as for tobacco labelling. As far as I am concerned, the clause should stay as it is in the Bill. As far as a fine is concerned, who would be the transgressors? They would be supermarkets, manufacturers and whoever. If they are fined, they are fined and they will just get on with life. There should be real teeth to this provision and the wording in the Bill should stand.

Could we hear from the Government? This is an important matter. The Government are rightly concerned that our prisons are full to bursting point. They must have a view on whether it is wise to provide for the possibility of imprisonment for such an offence.

The Government’s position is that, should we legislate, we will consider what penalties are most appropriate, using as a starting point the penalties in similar legislation such as for food labelling.

I can put the Question on Amendment No. 23, but if I do so, I will not be able to call Amendments Nos. 24 and 25.

I am very conscious of the conflict on this. Is there any way that we can defer it for further consideration before we take a position on it?

It may assist the Committee if the noble Baroness withdraws her amendment for the moment and considers the issue on Report.

In those circumstances I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 and 25 not moved.]

Clause 11 agreed to.

Clauses 12 and 13 agreed to.

Clause 14 [Interpretation]:

26: Clause 14, page 7, line 38, leave out from “any” to end of line 40 and insert “pre-packaged alcoholic drink above 0.5% alcohol by volume, including any product developed or marketed primarily as an alcoholic drink notwithstanding that the product—

(a) is classified as a foodstuff for the purposes of licensing or customs and excise legislation, or(b) appears to be solid or heavily textured (or can be made to be, for example, by freezing or shaking).”

The noble Baroness said: This amendment proposes a more comprehensive definition of “alcoholic beverage” that takes into account innovation over recent years in the drinks industry, and without which some products that are particularly popular with young adults may find themselves in a loophole and able to escape the Bill’s obligations.

It is too restrictive to define “alcoholic beverage” only as something in liquid form. When I worked at the Portman Group and we were strengthening the code on the naming, packaging and promotion of alcoholic drinks, we realised that some products might avoid the code’s remit unless we updated the definition to take account of products which looked more like solid or semi-solid crushed ice, gel, jelly, thickened cream or had some such texture. Sometimes these products are not even classified as alcoholic drinks for licensing purposes. The Portman Group upheld a complaint against one of these products that appeared on shelves next to sweets and baking products. It had a very high alcoholic content and was attractive to children. The code got rid of it by ruling against its packaging and getting the retailers to destock it.

The definition proposed in my amendment is taken from the definition used in the Portman Group’s code. I am happy to note that the noble Lord, Lord Mitchell, supports this amendment, which would ensure that the alcoholic products that would be captured by this definition would be covered by his Bill, or any other requirements concerning pregnancy advice on labels. I beg to move.

I did not add my name to this amendment because, frankly, I did not understand entirely what it was getting at. However, now that it has been explained I do understand and it makes perfect sense and I support it. However, I raise liqueur chocolates in this regard. This is not frivolous. In the days when I used to ski—they are, alas, long since gone—I used to enjoy stopping off at Geneva on the way out and on the way home and picking up a few bars of something quite delicious at the airport or railway station called Gouttes de Kirsch. It was a chocolate bar containing full strength kirsch. A woman suffering cravings during pregnancy could easily demolish a bar or two of these. I reckon they contain as much alcohol as a miniature, perhaps more. I wonder whether consideration has been given to that. Liqueur chocolates are not very fashionable in this country nowadays but if you had a craving for them and ate a bar a day you could presumably do yourself harm.

I draw attention to a very small point regarding alcoholic drink above 0.5 per cent alcohol by volume—0.5 per cent means 0.5 of a gram per 100 ml, so one does not need to include “by volume”.

The amendment is a very useful contribution by the noble Baroness, Lady Coussins. It was suggested by her and it deals with an area which, frankly, I had not anticipated. In response to the noble Lord, Lord Monson, surely chocolates containing alcohol are covered by paragraph (a) of the amendment which states, “classified as a foodstuff”. I would think that his delicious chocolates are probably covered as a foodstuff. I am also pleased that the 0.5 per cent mentioned by the noble Lord, Lord McColl, is a threshold requirement.

On Question, amendment agreed to.

27: Clause 14, page 8, leave out lines 2 to 4

28: Clause 14, page 8, line 5, after “sealed” insert “primary”

29: Clause 14, page 8, leave out lines 8 to 12

On Question, amendments agreed to.

Clause 14, as amended, agreed to.

Clauses 15 and 16 agreed to.

House resumed: Bill reported with amendments.