Official Report 233KB pdf
Agenda item 4 concerns the Tobacco Advertising and Promotion Bill, which is being considered by the UK Parliament. I welcome Malcolm Chisholm, who is here to give evidence. The bill contains provisions that affect Scotland and are within the legislative competence of the Scottish Parliament. The UK Government and the Scottish Executive have taken the view that it would be more practical and appropriate for the relevant provisions to be dealt with in one UK bill rather than to have a separate Scottish bill. That approach has been referred to in the past as a Sewel motion. The other devolved assemblies in the UK have taken a similar view.
I am delighted to be here at the first meeting of the new-look Health and Community Care Committee. I congratulate Margaret Jamieson on her election to the post of deputy convener. Given that that position seems to be a stepping stone to my job, I shall have to keep a close eye on Margaret.
Thank you for that introductory statement. We all share your concerns about smoking and would echo the points that you have made about the importance of tackling the number of smoking-related deaths in Scotland. It is clear from the paperwork relating to the bill that we could save somewhere in the region of 300 lives a year in Scotland.
If the committee is agreeable, the Sewel motion will be considered by the Parliament next week. We do not have any direct control over when the bill will be introduced at Westminster, but I understand that it will be introduced this month. I am assured that the intention is to pass it by the spring. I cannot give a guarantee on that and I suspect that not even the business managers at Westminster could do so, because MPs are at liberty to move amendments to the bill.
I would like to indicate my support for the objectives of this bill. I hope that all of us support what the bill is trying to do. I fully appreciate the arguments for having a UK-wide ban and UK legislation. In this case, those arguments have been well made.
To be fair, it is entirely because of EU legislation and the challenges that it poses that the bill is being introduced relatively late in the Parliament—although it is only year 4. We should put that on the record.
Assuming that all committee members share the views that have been expressed so far and support the bill, it seems reasonable that this committee could make a robust statement today saying that we want the bill to be enacted this side of a general election. If there were any question of slippage, we would want to review the situation, as the minister suggested.
In certain other Sewel motions, the strongest argument has been the convenience argument—that things would be done more quickly at Westminster. However, in this case, time and convenience are not the only considerations. The most important thing is to deal with this issue consistently across the UK. The whole argument should not turn on whether things will be done before the date on which Nicola Sturgeon presumes that the general election will be held.
Automatically, a clause in the bill will state that Scottish ministers will take over enforcement powers in Scotland.
The bill actually says that enforcement will be by local trading standards officers but that there will be powers for Scottish ministers to take over enforcement. However, normally it will be for local trading standards officers to report any offences to the procurator fiscal. Enforcement will be under Scottish jurisdiction.
The EU has been thwarted in its attempts to introduce similar measures, because it acted under competition law and not under public health. As I understand it, that is why the measures failed. Will the EU take up the issue again? We have been talking about cross-border issues between Scotland and the rest of the UK, and we have been talking about written publications. However, because of the way that other media are developing, we have to consider other boundaries. Is the EU likely to come back with new directives under public health?
I believe that it is working on another directive. As you suggested, the problem with the original directive was that it was introduced as a single-market provision, before it was ruled that it was a health provision. Another directive would clearly be helpful in many areas, not least in sponsorship. That may be a further reason for putting the precise time of the sponsorship ban in regulations. We can perhaps hope for some European developments in the immediate future.
Thank you, Malcolm, for outlining matters. I think that everyone welcomes the intentions behind this legislation.
There is no intention to catch people who do something accidentally. The bill gives a clear and explicit defence, in more than one of the subsections of clause 5, for people who do things unwittingly.
Malcolm, you indicated that you personally, and perhaps the Scottish Executive, did not have a figure for the possible loss to the newspaper industry. However, one would hope that the UK Government did have such a figure, because we are talking about a vital industry in Scotland. Although we all wish overall tobacco intake to be cut down, a number of people feel that these measures could harm the newspaper industry. The people—and, in particular, the very young people—whom we most wish to discourage from tobacco products are the people who are least likely to be reading an advertisement for tobacco in The Herald or The Scotsman. Has there been no computation of the possible harm to the newspaper industry in Scotland?
I think that we have some figures in one of the papers, but I am not sure.
The only figures that I have, which are for business in general, are for the impact that the ban could have on business throughout the United Kingdom, and they do not set out figures for the newspaper industry. There will be a reduction of more than £300 million in tobacco expenditure, a £50 million reduction in tobacco advertising and a £43 million reduction in tobacco sponsorship of sports, but that does not help to answer your question about newspapers, Dorothy-Grace. It sounds as if you are arguing for an exemption for newspapers. I have to say that I disagree strongly with you.
I did not want to get too deeply into this, but I must declare an interest as a member of the National Union of Journalists. Will the Executive go furth and consider this matter and come up with some figures?
I have a supplementary on the matter. On the question of the proper identification of the correct offender—that is, the producer of the defective product—how will the responsible person in the newspaper chain, from the editor through to the vendor, be found? That might be costly and time-consuming. Has that been taken into account?
That is deliberately left open in the legislation so that the courts can make a judgment on it.
Will there be a moratorium during which retailers and others will have the opportunity to remove tobacco-related livery without fear of prosecution?
One of the clauses in the bill leaves it up to ministers to decide the commencement date, so I am sure that that point would be taken into account. It is not implied that the bill will take effect immediately on receipt of royal assent. It will be up to ministers to decide on the commencement date. That would allow for the transitional period that Margaret Jamieson suggests. However, for certain matters, such as brand sharing and sponsorship, there will be a longer transitional period because it will take far longer for people to adapt in terms of brands of clothing and finding alternative sponsorship. That is one reason why there will probably be a longer delay in those circumstances. It will be up to regulations to determine the commencement date.
Will any provision be made for retailers such as newsagents, which cannot be classified as specialist tobacconist shops under clause 6(2), for the loss of income that might be occasioned by being unable to advertise their wares?
No, there is no such provision in the bill. It is an important part of the bill that general shops, rather than specialist shops, should have restrictions. Such shops are where young people are likely to go. One reason why there is an exception for specialist tobacco shops is that older people tend to go to them. Clearly, however, we will have control of the regulations for general shops, so there will be consultation on the details of the regulations. Members will therefore have an opportunity to raise specific points of concern about how the legislation should be enforced in general shops. However, the clear intention is that there should not be advertising outside shops or in shop windows and there is no provision for compensation. In any case, compensation would be difficult to quantify.
You indicated that there would be consultation. How do you envisage that being carried out, given that the matter will be handled by the Westminster Parliament? Will the matter come before this committee again?
The Executive memorandum explains that some of the regulations, such as those on brand sharing, will be dealt with on a UK basis. There are good reasons for that. It would be ridiculous, because of cross-border flow, to say that there could be products with a brand on them in Scotland, but not in England. The regulations that refer to what happens in shops at the point of sale, specialist tobacconists, and the date of the sponsorship ban will all come before this Parliament and this committee. Those regulations will also be consulted on, so that the details can be discussed. I cannot give the committee the details of the consultation at the moment, but we could think about it and write to the committee.
Could you say more on Margaret's point about newsagents and small shops? Point-of-sale advertising is exempted from the ban—subject to regulations, as you say—but what is your thinking on the shape of those regulations? Clearly, point-of-sale advertising in newsagents and small shops is exactly the advertising that young people in particular might be most likely to come into contact with. They are more likely to see such advertising than they are to see an advert in a newspaper, for example. It is therefore important that the exemption is narrowed as far as possible for the ban to be effective. I know that you said that there will be consultation, but what is your thinking at this stage on the shape of the regulations?
Nicola Sturgeon can rest assured that we can deal with the matter at a Scottish level. That is appropriate, because the same cross-border and enforcement issues do not apply in this case. It is our intention that the regulations should be as robust as possible. I have already alluded to my understanding that they will ban advertising outside shops or in shop windows.
I will make a technical point. If one reads clause 4(2) and clause 6, it seems that there is an argument that the primary legislation will ban advertisements in shop windows, so it is arguable whether that is an issue for regulations—the regulations are about point-of-sale advertising in shops. You say that shops will be able to display products and advertise the names of those products. I am not clear to what extent advertising within shops can be regulated, but it is the form of advertising that probably impacts most on the people whom we are trying to protect with the ban. I am not clear that we know enough about what is envisaged in the regulations to give a carte-blanche acceptance to the legislation.
When I referred to shop windows, I was referring to displays in shop windows, which could be covered by regulations.
That is in the legislation. Given the way in which clause 4(2) is framed, I would argue that such displays are banned. Clause 6 uses the words,
Clearly, it is. As I said, I would expect there to be a sign if a company's products were being sold, but the location and the size of the sign can be dealt with in regulations. It would not be appropriate to deal with that in primary legislation.
My party also supports the bill, the fact that it is UK-wide legislation and the ban. I assure Nicola Sturgeon that, should the Tories win the next general election, we will pursue the legislation.
We will rest easy in our beds.
We all support the measure, but what evidence exists to show that banning tobacco advertising will contribute towards the achievement of a healthier Scotland? I believe that the television advertising ban has been in place for at least a decade. Will you tell us whether that ban has resulted in smoking cessation?
Nobody is saying that a ban alone will change the situation—that is partly why I mentioned all the other measures that we are taking at the same time. Research leads us to believe that there might be a reduction in smoking of about 2.5 per cent—that represents a significant number of people and a significant number of deaths. It is clear that the ban will have an impact, but nobody is pretending that that measure alone will deal with the problem.
What impact do you feel that the bill will have on smoking cessation?
We expect that it will have some effect, especially in preventing young people from starting to smoke. We are not putting all our eggs in this basket; we must do many other things, which is what we are beginning to do.
You mentioned the secondary legislation regarding electronic sales—I presume that you were referring to the internet. Many people purchase cigarettes over the internet, where it is more difficult to regulate advertising. Given the increased use of the internet, how will you extend the ban—if you can—to electronic advertising?
That is increasingly important. We want to ban advertising on the internet of UK-based businesses. Clause 7—a short clause in the bill—is important; it concerns an area on which everybody would agree that we need to have regulation-making powers. I am sure that members have all read it, but since it is so short, I will read it. It says:
How will the bill support the Executive's health strategy on alcohol, tobacco and drugs?
Nicotine is a drug, so in that sense drugs are included. We should consider the bill in terms of its effect on the number of people who smoke. I do not know whether Mary Scanlon has something else in mind; does the bill cross over in ways that I am not quite capturing?
I am thinking about the links with the overall prevention of abuse, health strategies and the contribution of the bill to achieving reduced cancer and heart disease rates and so on in Scotland. How will it impact on those clinical objectives?
The bill is an important part of that, but it would be wrong to become complacent and to feel that, once we have passed the bill, we have made the major step forward. We must be realistic; a ban in itself will not stop most smokers smoking, but we hope—and all the research suggests that this is the case—that it will stop a significant number of people smoking.
We are looking not only at a ban, but at other measures, such as better enforcement of the legal age limit and so on. Will a ban be part of a bigger package?
Absolutely. Out of respect for what the convener said, I truncated the first part of my speech. I thought that she might tell me off if I strayed too widely. There are many measures; we must act on under-age smoking, prevention, nicotine replacement therapy and the health improvement fund. The committee has been concerned with the issue of smoking in public places—I am sure that members will keep a close eye on the voluntary code and may express a view on that at some point.
I apologise for coughing. It is not due to smoking—I have never smoked.
That is the intention. John McAllion has opened up a complicated area—there could be knock-on effects on all sorts of things, including taxation revenue. Our view is that a ban is so important that we have to accept that.
My second point is on timetabling. Like the minister, I have been at Westminster and know that no Government can take Oppositions—and indeed its own back benches—for granted. However, given the Government's majority of 177 and the cross-party support for a ban, there is no reason to presume that the legislation will not be in the statute book before the general election, even if that election is on 3 May. Is that correct?
I am glad that my Westminster colleague puts it even more strongly than I did. I suppose that we both have the right—John McAllion certainly does—to go down and speak at the bill's second reading.
Or even to vote for it.
It would be helpful if the minister indicated how long people have been working on the bill. Coming through the ether today is an indication that those who have drafted the bill do not seem to have thought out the difference between in-your-face advertising—such as billboard advertising, with cigarettes being pushed everywhere possible without people having to seek them out, which all of us deplore—and newspaper advertising. We can have a say about that in Scotland, so will the minister consider an exemption for the Scottish newspaper industry? Does Malcolm Chisholm honestly think that youngsters will take up smoking because they happen to see an advertisement for cigarettes in, for instance, The Scotsman or the Daily Record?
On the member's first point, work has been done on that for a considerable time, but the context was different. I and others have referred to the EU directive. The first main piece of work that was done by the UK Government was to make up regulations that would carry the directive into effect. Those regulations were available about a year ago. That indicates that much work has been done. It must now be done differently, through primary legislation. As I said, the provisions of the primary legislation are similar to what was contained in the EU directive. The impression Dorothy-Grace Elder gives, that somehow the bill has been cobbled together in a hurry, is not correct. Not only has it been worked on at UK level for a considerable time, it has been worked on at European level for a considerable time. What is proposed here is very much consistent with the EU directive.
I make the points myself, Malcolm. Nobody has got at me—they do not need to.
There might be a difference in the degree of promotion, but that difference is not such as to persuade me to make an exemption for newspapers.
Let us move on to prohibition on sponsorship, which we all support. The explanatory notes to the bill highlight a potential loophole, on which I would like the minister to comment. They say that
I recognise that sentence from the explanatory notes, but Nicola Sturgeon is extending the scope of that explanatory note beyond what is intended.
I am reading it as it stands; I have not paraphrased it.
Explanatory notes are subordinate to the bill, therefore the wording of the bill always interests me more than the wording of the explanatory notes. Clause 9, subsection (1) of the bill states:
I am happy to accept your reassurance that that is the case.
We should never forget that the tobacco industry is the most imaginative and inventive industry—those are euphemisms—when it comes to getting around the law. They are past masters of that. They have managed to extend and make flexible in their own interests every voluntary agreement that has been established. I predict that the company names that are related to tobacco will change rapidly if the companies are allowed to use them in a public setting.
We will consider what Richard Simpson and Nicola Sturgeon have said on the matter. I had some concerns about the explanatory notes, which Nicola Sturgeon has raised, although I was reassured when I referred the issue back to clause 9. There is a dividing line, and some people will argue that it could go further. That point will be made at Westminster. It is clear that a company cannot get around the prohibition simply by using its name instead of its product, but there are still issues to be considered.
Judging by the body language of all members of the committee, Nicola Sturgeon's point is well made and addresses an area of common concern. It would be helpful if the minister conveyed the fact that all the committee's members share that concern.
The issue of brand sharing has been mentioned in passing, but has not really been addressed today. In that area, regulation is a matter for UK ministers, but it is important that we have a voice either through the committee or through Scottish ministers making their views known to Westminster. If the regulations are not very tightly drawn, the imagination of tobacco companies—to use Richard Simpson's phraseology—will be employed in using non-tobacco products to promote tobacco, by associating tobacco terminology with non-tobacco products or vice versa. A well-financed tobacco company could go to town on getting around the legislation and I am concerned that this is a big area of legislation that is subject to regulation in which the Scottish Parliament will have no direct involvement.
As I have said, there would be no chance of the bill being passed in the next three months if we were to put the regulations in primary legislation. I have explained our obligations under the technical standards directive. There is a three-month period during which member states cannot progress a measure when it comes under that directive.
Of course we want to cut out the in-your-face advertising, but by cutting off the tobacco barons from all legitimate forms of advertising, we will push them into being more subtle, which could be more dangerous. They could go into film production and finance films that have more stars smoking in them. I urge the minister to consider ways in which the clever people who are associated with advertising could advise the Government of the tactics that tobacco companies might adopt if they are not allowed the legitimate outlet that is least harmful to the general public.
Dorothy-Grace Elder's general point is correct, which is why brand sharing is one of the key aspects of the bill. If that is not tackled, there is a possibility that tobacco companies will merely transfer advertising expenditure to that type of promotion. However, I do not draw from that the same conclusion that she draws. We must be mindful of the alternatives and ensure that we take action to stop the transfer of expenditure into those areas. I agree with the general point, but I do not accept the conclusion that we ought to give tobacco companies an area in which they can operate legitimately.
I have a final point, which John McAllion touched on. According to the estimates that are contained in the Executive memorandum, the Government stands to lose in the region of £250 million a year in revenue, following the implementation of the measures. I presume that the Government's thinking is that that is a price worth paying.
Absolutely. We must be up front about that. The less revenue that we receive from tobacco sales, the better. That matter is primarily for the Westminster Government. It might not be a simple calculation of lost revenue. As I said, the macroeconomic effects will be complex and if tobacco revenue releases spending power in other areas of the economy, we cannot necessarily say that the loss of that money would be offset in some way.
We would be delighted to take less revenue from cigarette sales, but one of the positive developments in the past 12 months has been that, as a result of taxation of smokers, £26 million has gone directly into public health work in Scotland. None of us wants that work to be jeopardised, so funding will have to be found from different sources as revenue diminishes if you reduce the number of people who smoke.
I am sure that people would be very happy to look for alternative sources of funding if tobacco revenue decreases, as we hope it will.
I will sum up the issues before we discuss our substantive decisions.
I am told that that is up to the business managers, as ever.
Do members have any comments on that?
It is a matter for the business managers, but we could make our views known.
I support Nicola Sturgeon's comments. This is a devolved issue, so we should not let it slip through Parliament unnoticed. The Parliament should exercise its rights and say that we are interested in this matter. There should be a parliamentary debate about why it has been dealt with at Westminster.
It is a good idea for Parliament to be made aware when Sewel motions are happening, why we are agreeing to them and how often they are being used. There is not great concern about it on this matter, but there might be in some cases. As a general rule, we should not let them slip by. We will intimate to the Parliamentary Bureau that the committee wants a short parliamentary debate.
I thank Malcolm Chisholm and his officials for attending the committee.
Previous
Items in Private