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Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010

Volume 718: debated on Monday 8 March 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments.

My Lords, I am here today to move two sets of affirmative regulations on tobacco control. The first, the Protection from Tobacco (Sales from Vending Machines)(England) Regulations 2010, prohibit tobacco sales from vending machines. The second, the Tobacco Advertising and Promotion (Display of Prices)(England) Regulations 2010, regulate the display of tobacco price lists and price labels to coincide with the removal of tobacco displays

Noble Lords will know that the Health Act 2009 included provisions on tobacco sales from vending machines and the prohibition of tobacco displays. Four separate sets of tobacco control regulations have been laid, two of which I am moving today. A further two sets of regulations, on removing tobacco displays and on specialist tobacconists, were laid on 2 March 2010 under the negative procedure.

A public consultation on all four sets of regulations ran until 4 January 2010. The Summary of consultation responses, the Government’s response and consultation report, was published on the Department of Health’s website on 26 February. I can assure the Committee that health Ministers have carefully considered all the consultation responses received. The consultation played an important role in informing the final regulations.

The problem of youth smoking is something we are all concerned about. As the Committee will recall, we had a great deal of debate about it during consideration of the Health Act last year. This Government strongly believe that we have a responsibility to do everything that we can to protect young people from becoming addicted to tobacco and to support those people who are already addicted who want to quit.

The Department of Health recently published A Smokefree Future, the new tobacco control strategy, which sets out the Government’s vision for protecting young people and the public from the health harms of smoking. These regulations are part of this package of work to help young people resist starting to smoke and to support adult smokers to quit.

The risks of smoking are well documented and have been well rehearsed in earlier debates. I do not intend to go through them all again during this debate, but they show why we must continue to focus on tobacco control.

As noble Lords will appreciate, the regulations prohibiting all tobacco sales from vending machines, the Protection from Tobacco (Sales from Vending Machines)(England) Regulations 2010, are very brief; in fact, there are only two regulations. Apart from providing that the sale of tobacco products from vending machines be prohibited, they also provide important clarity about who would be liable for any breach.

The person who controls or is responsible for the management of the premises where the machine is located would commit an offence if tobacco sales were made from a vending machine. We are very concerned about how easily children can access tobacco in vending machines, and that availability of tobacco from machines undermines efforts by adult smokers to quit.

Evidence shows that, in 2008, vending machines were a usual source of cigarettes for 12 per cent of young people aged 11 to 15 who were regular smokers. Evidence from the latest data on local authority test purchases from vending machines during 2008-09 shows that under-18s were able to make illegal purchases from the majority—58 per cent—of vending machines tested across England. These data showed that more than one in four vending machines was unsupervised. It demonstrates that, even after more than 10 years, the voluntary code of practice to prevent children buying cigarettes from vending machines is not working effectively and is a totally inadequate safeguard against under-age sales.

Action to prohibit sales from vending machines should not be seen in isolation. Of course we have taken, and will continue to take, action to tackle other sources of tobacco used by children.

We take seriously the need to consider the impact on business. The regulations do not commence until October 2011, giving businesses and employees time to prepare. We have fully taken into account consultation responses about the effect on business, but we are satisfied that the impact on businesses does not outweigh the clear public health benefit of the regulations. When it comes to public health, the cost of acting must be balanced by the cost of not acting. We also believe that the regulations will be easy to understand for businesses and will be far simpler to enforce than current legislation requiring local authorities to carry out test purchases.

Taking all the arguments into account, I believe that removing this easy source of cigarettes for children is a responsible and proportionate response to the problem. The Government know that, despite the voluntary code, a significant number of children still get cigarettes from vending machines.

The Tobacco Advertising and Promotion (Display of Prices)(England) Regulations 2010 are part of a package of three sets of regulations flowing from the prohibition of tobacco displays under Section 21 of the Health Act 2009. The regulations set out the size, appearance and number of price lists and price labels retailers are able to use so that customers know what tobacco products are available for sale. While detailed, they are straightforward in their purpose and effect.

We have seen how the ban on advertising resulted in the tobacco industry exploiting tobacco displays to actively promote tobacco products. In a similar way, once product displays are removed, we must guard against tobacco price lists being exploited and turned into brand promotions. However, retailers must be able to carry out their day-to-day business of selling cigarettes. It is essential that retailers are able to let customers know which products they sell and at what price, and that staff know where different products are stored once tobacco shelving is covered over.

We have worked closely with stakeholders throughout the drafting of the regulations to ensure that they are effective and practical, which is why the regulations allow for prices to be displayed in different ways—in separate lists or labels attached to shelving. But the regulations ensure that such price labels cannot include any form of product branding, whether through the use of the particular colours or the particular typesettings associated with different brands. A pictorial list is allowed where it is needed and asked for by a customer, but only on request. This will ensure that customers who, for whatever reason, are not be able to read English are able to identify the brand they want by recognising its picture.

We carefully considered all the responses to the consultation and a number of changes have been made to the regulations which take account of stakeholders’ views on their practicality. For example, the maximum size of a price list, as set out in Regulation 6(1)(b)(vi), has been increased from roughly A4 to roughly A3, recognising that A4 was too small to allow shops to list all the products that they sell. Regulation 6(1)(b)(ii) now allows price lists to include generic sub-headings to show different types of product such as cigarettes, cigars or tobacco. Under Regulation 5(a), all price lists and labels may now include information to describe cigars—the country of origin and dimensions—and the cut and type of tobacco in pipe tobaccos.

We have provided a clearer definition in Regulation 2 of “bulk tobacconists”, which recognises the specific needs of these traders while ensuring that no loopholes are created. This approach is in keeping with the display regulations. We have listened to retailers. These are all sensible changes to make.

On the other hand, the public health lobby are concerned to limit the potential impact of numerous lists and labels which must, by their nature, include product brand names. Recognising the public health arguments, the regulations no longer allow the use of bold typeface as this could be exploited to emphasise particular brands. Regulation 5(b)(i) now refers to only “plain type”. Under Regulation 6(2), price lists will be limited to one for each area where tobacco is sold, rather than one for each till where products can be paid for.

I believe that the final regulations strike the right balance between protecting public health and recognising the needs of businesses. For the reasons I have explained, I commend both sets of regulations to the Committee.

My Lords, in thanking the Minister for introducing these regulations with her customary clarity, I feel I must begin by making clear to her and to the Committee that I remain opposed to both the policy and the primary legislation on which the regulations are based. I am opposed to the Government’s policy on tobacco displays, of which the tobacco pricing regulations must be seen as a part, because I believe that the evidence base for its alleged benefits is unacceptably weak and the consequences for small shops disproportionately damaging.

I am opposed to the policy to ban cigarette vending machines because I believe that the regulation of machines, using known and tested technology, could and should have been tried before an outright ban was imposed. That indeed was the Government's original policy. However, now that the primary legislation has been approved by Parliament I must accept that it is perfectly within the Government's prerogative to bring these regulations forward. Our task today is to examine those regulations on their own terms.

I turn initially to vending machines. It is striking that regulations that extend over barely a page of A4 should require 23 pages of Explanatory Memorandum to back them up. I am not complaining about that—quite the reverse—as it shows how thoroughly the department has tried to quantify the impact that the regulations will have when they come into force in 18 months' time. However, in reading the impact assessment, it is impossible to avoid the thought that officials may have tried a bit too hard. For example, I think it becomes very difficult even to attempt to quantify the extent to which the ban on vending machines will impact on smoking prevalence in the young. We are told that 12 per cent of regular smokers aged 12 to 15 have cited vending machines as a usual source of tobacco products. However, we know that a given individual may have several usual sources, and therefore in order to prove that the policy will have a lasting benefit it is necessary to demonstrate that any reduction in cigarette consumption arising from the absence of vending machines is likely to persist over the long term.

As the evidence base admits, some children may not reduce their smoking at all, and it goes on to say in paragraph 41 that:

“There is also the possibility that young people will be very effective at finding alternative sources of cigarettes”.

The word “possibility” in that context is a bit silly. We can surely be pretty certain that young people who have several usual sources of supply and who are intent on accessing cigarettes will succeed in doing so. Therefore, while I am not arguing that denying children access to vending machines is a misguided thing to do—indeed I believe that the aim is absolutely correct—I wonder whether it is not a slightly pointless exercise to try to measure in advance and with any precision what effect this will have on cigarette consumption in the young. The fact that the predicted benefits range in monetary terms between £19.9 million a year and £100 million a year rather serves to bear out this view.

As I have said, I am not in any way averse to the aim of the underlying policy. What I object to is the abandonment by Ministers of the more proportionate approach that they originally favoured, which would have obliged vending machine operators to install technology designed to prevent access to those machines by anyone under 18. This type of technology is not only credible in theory but has been trialled successfully in a number of areas. I recognise, of course, that the Health Act 2009 provides only a power to prohibit the sale of tobacco from vending machines, not to regulate such sales. Nevertheless, I cannot help pausing for breath when I read in paragraph 9 of the impact assessment:

“Government intervention is justified to prevent young people from accessing tobacco ... The current voluntary code of practice ... to prevent underage access ... has proved to be insufficiently effective”.

As a statement that purports to justify the policy contained in the regulations, that falls rather short of an intellectually compelling case, ignoring as it does other courses of action designed to achieve the same ends.

The Minister may think that this is slightly unfair criticism. However, we are dealing with a measure whose net benefit, even by the Government's own calculations, may be as low as minus £143 million. In other words, although the Government have assumed that the net benefit will be positive, it is clear that the risk of the regulations failing to deliver any benefit is considerable. One has only to look at the calculation of the health impact on adults. The reduction in the number of cigarettes smoked by each adult smoker is computed at between 0.03 and 0.08 cigarettes a day. On those flimsy foundations, officials have constructed an edifice which translates into a monetised benefit of between £24 million and £74 million a year in terms of extra life-years gained. Yet, as the Government admit, as a result of this policy option:

“The number of cigarettes smoked by adults may fall”.

The word “may” is exactly right. Predictions of this kind are highly speculative.

The other effect of these regulations will be to put more than 500 people out of business and out of work. The immediate cost to the vending machine industry has been calculated at £22 million, a figure which I have to say looks extraordinarily low. We are told that there are nearly 58,000 vending machines around the country. The average value of a machine has been assessed at only £375 on the basis of market research into the asking price for second-hand machines. I am doubtful about this. For one thing, the current price of second-hand cigarette vending machines cannot remain wholly uninfluenced by the Government’s announcement that they intend to ban them next year. For another thing, the gross margin per machine per annum is known to be around £1,750, and therefore I think we should be wary of accepting as gospel a valuation per machine that is barely a fifth of that figure. The Government may regard 550 people losing £22 million as a trivial consideration in the scheme of things, but they might have had a more convincing story to tell those people if the economic benefits of their policy had been more clear-cut.

I now turn to the display of prices regulations. The striking thing about them is not that they exist—we all accept that price lists cannot be allowed to become a tool to promote tobacco sales—but rather that they should exist in such an extraordinarily prescriptive form. Regulations 5 and 6 take us into hitherto undreamed of realms of wickedness. There is the wickedness of capital letters. Capital letters may be glimpsed only at the beginning of words and, if you value your virtue, nowhere else, thank you very much. There is the wickedness of using an alien typeface. If you print your price list in Helvetica, you may count yourself a decent human being. If you should be so rash as to do it in Garamond, Arial or Times New Roman, then, oh dear, it is the naughty step for you. Cream paper not white paper? You may be hauled off. Is the list in a frame? If it is, for all I know, transportation beckons.

Now, if you are over 18, but only if, you are allowed to ask the shopkeeper to produce from under the counter a price list on which there may be a naughty picture—an explicit and highly provocative image of a cigarette packet. You may gaze at that packet for only as long as it takes you to decide whether you want a real one. In doing so, you may wonder what the name of the packet is, but if you have come without your glasses you could be left wondering because, in the wording beside the naughty image, the height of the lettering may not exceed four millimetres—I repeat: four millimetres.

I truly wonder what kind of a world we are in with these regulations. Do the Government seriously believe that an adult who asks to see a list of cigarette prices may be corrupted by the sight of lettering that is too large, or that he may become addicted to cigarettes by looking at a picture for too long? I say to the Minister that anti-tobacco legislation is all very well but if we are reduced to this level of patronising detail, then as legislators we are in danger of looking like a pretty sorry outfit.

I do not know whether the department has tested these rules. What they mean in practice is that the consumer will be presented with a price list the size of an A3 sheet of paper. On this sheet, a shopkeeper may have to squeeze as many as 150 product lines. Is the Minister aware of how extremely difficult that is? I have seen a mock-up of a list with 347 product lines and I can tell her that it is almost impossible to read. Has she also given thought to how a small retailer is supposed to compile and update these lists when product prices are constantly changing? She may say that word processors make this task quite straightforward, but has she looked to see whether Helvetica is a typeface that her computer has? My computer does not have it. Therefore, if a shopkeeper is obliged to have his lists specially printed, he could be asking for reprints every other day of the week. Has the Minister also considered what a height limitation of four millimetres means when you are trying to read lettering on a gantry? Unless your eyesight is 100 per cent, you might just as well forget the lettering altogether. What is anyone afraid of? Why can the lettering not be of reasonably legible size?

We will, of course, approve these regulations, as we always do, but I simply end by saying very gently to the Minister that, however much we may disapprove of smoking and tobacco, prescriptiveness of this order is unnecessary. The regulations in the Republic of Ireland succeed in being restrictive without descending into Orwellian levels of detail. I commend those regulations to her as bedtime reading.

My Lords, I thank the Minister for introducing the regulations in her customarily thorough fashion. I congratulate the noble Earl, Lord Howe, on opposing them with some style.

I find myself in a slightly different position. As noble Lords will recall from the passage of the legislation from which the regulations come, I supported the proposals to ban vending machines. I have sympathy with the noble Earl, Lord Howe, in his scepticism about the costings produced by the department, but I am afraid that I take a slightly different view. I can live with an overstated case, because the simple fact is that vending machines are an anachronism and belong to a time when other forms of trading were far more heavily regulated and limited than they are now. On balance, the evidence shows that vending machines provide an opportunity to young people to take up smoking which in some cases they would not otherwise have. Therefore, the case is made.

I welcome the fact that the Government have stood by the courage of their convictions and gone ahead with the decision to remove vending machines altogether. I accept the point made by the noble Earl, Lord Howe, about the immediate effect on businesses which supplied the machines. They would not be the first businesses ever to have experienced a dramatic change in their trading environment and to have had to change and adapt their business. Overall, the general case for good stands with the regulations and I therefore welcome them.

I agree with the noble Earl, Lord Howe, that the evidence base for the other regulations is insubstantial. I argued that throughout the passage of the legislation and I am afraid that I lost. Therefore, I am in a position where I, too, have to accept the regulations which will go through. The policy is mistaken and to follow it will mean that we have inadvertently created conditions in which it becomes much easier for people to sell illegally imported tobacco. However, we had extensive and detailed debate during the passage of the legislation, at the end of which the intent of Parliament was clear. One usually has to go through regulations in significant detail to make sure that Parliament’s will has been reflected. In this case, it has been.

The noble Earl, Lord Howe, sought to caricature the actions of the Government in bringing forward such detailed regulations. I simply make the observation to him that the tobacco companies brought much of this upon themselves by the way in which they exploited the previous policy on tobacco advertising. Following the passage of the Bill of my noble friend Lord Clement-Jones, advertising was restricted solely to the gantries that one sees now. That tobacco companies, with what I suppose was commendable commercial application, exploited that to the full perhaps led to these regulations being so detailed and so tight.

Perhaps I may raise an issue with the Minister, which I hope arises from a mistake on my part. In the prescription of what can and cannot be displayed, I see no mention of health warnings. I believe that it was the intention of Parliament that health warnings would still be visible on displays.

I, too, was somewhat taken by the dimensions referred to in the regulations. I find it somewhat strange that we are referring to type in millimetres rather than in point size. Will the Minister tell us the type size being referred to and say why there is no reference to point size? People who deal in type usually use that as a measure, and people who work with people who have visual impairments are used to talking in terms of point size, so that would be useful information.

Can the Minister tell us the extent to which these regulations mirror regulations in other countries? During the passage of the legislation, a great deal was made of laws that the Government had looked at in various states in Canada and in Ireland. To what extent do these regulations follow the legislation that applies there now and to what extent does it go further? However, overall, as the noble Earl, Lord Howe, said, this is a matter on which Parliament has spoken, and it is incumbent upon us to accept these regulations.

My Lords, I support these regulations. We debated the legislation at length and I spoke at that time, so I shall not take too much time. I support the regulations banning cigarette sales from vending machines. We have discussed this before and know that voluntary guidelines have not worked. It has been said that other devices that could be used should have been piloted. In my view, that has already been done. Remote-control systems have been cited as new solutions, but the technology is not new and does not provide what we need. The option of using this technology was debated in the Commons on Report on the Health Bill, and some Members suggested that it would be simple to operate. In fact, it would be extremely problematic. In crowded bars, clubs and pubs it is unrealistic to expect staff to check ID and then to monitor an individual using a remote-control machine some distance from the bar while ignoring other customers trying to buy drinks. It is very possible that staff might end up releasing such machines without checking who wants to use them each time the alert is made.

Trading standards in south-west England recently conducted follow-up test purchasing from vending machines following the introduction of the method. It found that a number of premises had made modifications, including fitting remote-control devices, following warnings about previously poor results. During the repeat test purchase, four out of five occasions resulted in a sale. The National Association of Cigarette Machine Operators gave evidence to the Scottish Government last year about its test purchasing trial of radio-frequency-controlled vending machines. Although it claimed its findings as a success, staff failed to ask for ID in one in five cases. Test purchasing was conducted when the pubs, with one exception, were categorised as not busy and therefore cannot give a realistic impression of how the technology would work at busy times. I therefore support these regulations and believe that the removal of vending machines will promote a reduction in the number of children taking up smoking.

On the regulations on the display of prices, I have a great deal of sympathy with what the noble Earl, Lord Howe, said, but for different reasons. I would have gone further and banned point-of-sale displays altogether, including the display of prices. However, I have sympathy with some of the points he made about how this will work, including the point about Helvetica, but I support the regulations.

My Lords, I am not particularly surprised at the views expressed by the noble Earl. To a certain extent, his dismay was echoed by the noble Baroness, Lady Barker. In terms of vending machines, yes, Parliament has spoken and we now need to bring these regulations forward. As to the display of prices, we are in a heads-you-win or tails-you-lose situation with reference to too much or too little detail.

I think that the noble Baroness, Lady Barker, said that the tobacco industry has to an extent brought this on itself. Taking on board the analogy given by the noble Earl, I say that our experience shows us that even if you show a very small amount of ankle to tobacco companies, you do not know where it might lead. We cannot take anything for granted in their drive to advertise their products; that is the problem that we face. I thank the noble Lord, Lord Patel, for his support throughout this process of dealing with tobacco and regulation.

We take this issue very seriously and we do not regard it as trivial that there are consequences for the vending machine industry and the people who provide vending machines. However, stopping the sale of cigarettes through vending machines is an important measure to stop today’s children becoming tomorrow’s smokers. As well as being easily accessible to children, vending machines also provide temptation for adults. But we think that we are right to prevent access to a known source of tobacco for young people.

As the noble Earl and the noble Baroness recognise, alternatives were debated during the passage of the Health Bill. But it was the will of both Houses to make it clear that accepting those amendments would remove the regulation-making powers that would impose restrictions and that they were left with only one option.

We know that there will be an impact on the vending machine business. Indeed, I met people from that business before we discussed this matter in the House when the Bill came back to us from another place. We are using the date of 2011 in order for those businesses to have time to prepare, to diversify and to make alternative arrangements. The regulations prohibit only one possible use of vending machines, so operators would not be prevented from thinking about other uses. In fact, vending machines have other products in them.

We understand that some tobacco vending machine businesses may have already begun diversifying. We understand that the snack importer, Salysol GB, has launched a range of products in cigarette-sized containers that can be dispensed from tobacco vending machines, as reported in The Publican on 7 January 2010, which is entirely to be welcomed. I hope that we can therefore trust the diversity and entrepreneurship of those businesses.

On typeface and point size, we took advice from the RNIB—so we have discussed the point size. We are using four millimetres and seven millimetres for clarity. We want to avoid any doubt about the legal definition. Using a specific size is quite beyond doubt. It may help the Committee if I say that the maximum size of font or typeface on the price list will be seven millimetres, which is roughly 30 point. The size limit on labels is primarily for staff to be able to identify where stock is kept. The four millimetre size, which must therefore be about 12 point, is in keeping with that. We have done mock-ups. Our purpose is to use a typeface which is uniform and to make absolutely sure that lists cannot be used for promoting products. From our mock-ups of the lists, we think that they work.

The noble Baroness raised the issue of the health warnings that are on the cigarette packets. There is no intention that the warnings would be used anywhere else but on those packets. She also asked about other countries. Twenty-two other countries have banned cigarettes from vending machines. On price lists, as far as we are aware there are no precedents, so we have to discuss and consult—as we have done—and come up with rules that work. We will then have to see how those work out.

Motion agreed.