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

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.